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A STUDENT'S MANUAL 



OF THE 



Constitution of Illinois 



By DONALD L. MORRILL 

OF THE CHICAGO BAR 

Lecturer on Constitution of Illinois 

The John Marshall Law School 

Chicago 



CHICAGO 
1912 



W\1 



Copyright, 1912 
By Donald L. Moeriix. 



CCI.A305844 



PREFACE 

While there are numerous good treatises adapted 
for law students' use on the Federal Constitution and 
Government, yet there is no similar work for such 
students on the Constitution and Government of Illi- 
nois. Therefore this book has been prepared to meet 
the needs especially of students of the law in Illinois. 
The author's experience as a lecturer upon this sub- 
ject has impressed upon him the scarcity of accessible 
literature for students upon the topics necessary to 
be treated. 

Obviously no law course should be regarded as com- 
plete without a fair knowledge on the part of the 
student of the history and fundamental law of his own 
State. Yet few schools in the State give any formal 
instructions on this important subject. Illinois today 
is larger in population, richer in wealth, and more 
varied in its occupations and industries than the 
United States at the time of the adoption of the Fed- 
eral Constitution, and its organic law deserves and 
should demand the study and consideration of all who 
are intending to practice law within its boundaries. 

The book is divided into two parts, Part I covering the 
early history of Illinois, and a summary of its history 
under the Constitutions of 1818 and 1848. Part II 
consists of an exposition with annotations of the pres- 
ent Constitution of the State. It is believed that a 
more thorough understanding of the Constitutional 
and Legal history of the State and a wider knowledge 
of its fundamental law will do much to safeguard the 
State and its people from the political and social vag- 
aries and legislative experiments of sciolists now so 
active in the community. 

The Author. 
Chicago, Feb. 1, 1912. 



TABLE OF CONTENTS 



CHAPTER I. 



Illinois Under French and English Rule 1 

Under the French Regime 1 

Under English Rule 5 

CHAPTER II. 

Illinois from 1774 to 1818 9 

A Virginia County . 9 

The Virginia Cession 12 

From 1784 to 1787 13 

Under the Ordinance of 1787 14 

As part of Indiana 16 

Territory of Illinois 16 

Admission as a State 17 

CHAPTER III. 

The Constitution of 1818 21 

General Outline 21 

Local Government under Constitution of 1818 22 

Defects in the Constitution of 1818 23 

Judicial Decisions 24 

CHAPTER IV. 

The Constitution of 1848 34 

Important Changes in the Organic Law 34 

The Constitutional Convention of 1862 36 

Defects of the Constitution of 1848 37 

Judicial Decisions 39 

The Adoption of the Constitution of 1870 46 

CHAPTER V. 
General Outline of the Government under the Constitution 

of 1870 48 

The Legislative Department 48 

Senators and Representatives 48 

Minority Representation 49 

Legislative Sessions 49 

Special Legislation Forbidden 49 

Impeachment 49 

Executive Department 50 

Governor 50 

Certain Duties and Powers with reference to the Leg- 
islature 51 

The Power of Appointment and Removal 51 

Pardoning Power 51 

As Commander in Chief 51 

Power of Veto 51 

Other State Officers — Lieutenant Governor 52 



Secretary of State 52 

Auditor 53 

Treasurer 53 

Attorney General 54 

Judicial Department 54 

Supreme Court 55 

Appellate Courts 55 

Circuit Courts 56 

Superior Court of Cook County 56 

Criminal Court of Cook County 57 

County and Probate Courts 57 

County Government 57 

Other Provisions Relating to Counties 58 

Education 60 

Miscellaneous Topics 60 



CHAPTER VI. 
Constitution of 1870 62 

Article I. 
Boundaries 62 

Article II. 
Bill of Rights 64 

Article III. 
Distribution of Powers 85 

Article IV. 

Legislative Department 87 

Election 89 

Eligibility and Oath 89 

Apportionment — Senatorial 91 

Minority Representation 93 

Time of Meeting and General Rules 93 

Style of Laws and Passage of Bills. 96 

Privileges and Disabilities 99 

Public Moneys and Appropriations 100 

Pay of Members 102 

Special Legislation Prohibited 103 

Impeachment 109 

Miscellaneous 109 

Article V. 

Executive Department 116 

Election 117 

Eligibility 118 

Governor 118 

Veto 122 

Lieutenant Governor 123 

Other State Officers 124 

The Seal of State 125 

Fees and Salaries 125 

Definition and Oath of Office 125 

Article VI. 

Judicial Department 127 

Supreme Court 128 

Appellate Courts 133 

Circuit Courts 135 



County Courts 140 

Probate Courts 142 

Justices of the Peace and Constables 143 

State's Attorneys 144 

Courts of Cook County 144 

General Provisions 148 

Article VII. 
Suffrage 153 

Article VIII. 
Education 154 

Article IX. 
Revenue 160 

Article X. 

Counties 177 

County Seats 1 178 

County Government 179 

County Officers and their Compensation 181 

Article XI. 

Corporations 185 

Banks 187 

Railroads 189 

Article XII. 
Militia 194 

Article XIII. 
"Warehouses 195 

Article XIV. 
Amendments to the Constitution 199 

Separate Sections. 

Illinois Central Railroad 201 

Municipal Subscriptions to Railroads or Private Corporations.. 202 

Canal ^ . . 204 

Convict Labor 204 

Schedule 205. 



A STUDENT'S MANUAL 

OF THE 

CONSTITUTION OF ILLINOIS. 
PART I. 

CHAPTER I. 

ILLINOIS UNDER FRENCH AND ENGLISH 

RULE. 

The territory comprising the present State of Illinois 
forms a part of the vast and indefinitely bounded do- 
main which was claimed by England as a result of 
Cabot's voyage of discovery in 1498. The southern 
part of it was included in the original grant of land 
from the British crown to the founders of the colony 
of Virginia while other portions of it were covered by 
somewhat vague and indefinite claims advanced by 
New York, Massachusetts and Connecticut to the un- 
occupied lands west of the Allegheny mountains. Not- 
withstanding these claims the territory came into the 
actual possession of the French by right of discovery 
and exploration. The earliest settlements in the State 
were made by French pioneers and missionaries under 
the leadership of La Salle, Marquette, Joliet and 
others, who explored almost the entire territory from 
Lake Michigan to the Ohio and Mississippi rivers. 
Colonies were established at Kaskaskia, Cahokia, 
Peoria, Prairie du Eocher and other places, and in 
1717 the territory was annexed to the province of 
Louisiana. Prior to that time it had been considered 
as under the jurisdiction of Quebec. 

Under the French Regime. — The seat of government 
during the period of French control was at Fort 
Chartres, whose construction was completed about 
1720. 1 While this process of French colonization was 
proceeding slowly in the Mississippi valley, the British 

barter 's Great Britain and the Illinois Country. Mason 's Chapters 
from Illinois History 215. 

(1) 



colonies upon the Atlantic coast had so increased in 
population that the more adventurous and enterpris- 
ing of their inhabitants were crossing the mountains 
in increasing numbers and encroaching upon the 
French possessions. This movement caused the 
French to commence the erection of a chain of 
forts which was designed to connect Canada with the 
Mississippi territories and prevent the further en- 
croachment of the pioneers, traders and settlers from 
the English colonies. The military control of the 
French continued until the Treaty of Paris in 1763, 
which terminated the struggle known in our colonial 
history as the French and Indian war. At this time 
the population of the entire territory was between two 
and three thousand persons. 

But little can be said of the civil government during 
the period of French control, as the few records now 
remaining extant do not afford much information as 
to details. It appears that the province of Louisiana 
was originally divided into nine districts, of which 
Illinois was the ninth. This district included not only 
a large part of the present State of Illinois, but also 
the extensive territory west of the Mississippi river 
which now forms the States of Missouri, Kansas, Iowa, 
Nebraska, and parts of Arkansas and Colorado. The 
civil list included a commandant, who was the head 
of the provincial government, a commissary, a judge, 
a scrivener, a clerk, deputies, notaries and syndics or 
local magistrates. The public affairs of the district 
were administered by a council composed of the com- 
mandant and his two secretaries who regulated mat- 
ters in conformity with the rules of the civil law. 
Their government was mild and conservative and was 
not concerned to any great extent with the every day 
affairs of the people. It maintained absolute control 
over commerce, and its principal function seems to 
have been to attend to matters relating to supplies and 
stores for the royal forces and the maintenance of the 
provincial establishment. 

For the regulation of local affairs the principal 



agency was the village meeting, whose edicts related 
to all matters of general interest. The theory of the 
village organization was communalistic. The general 
business of the community was transacted at the vil- 
lage assembly which met in the church yard after the 
close of religious services. The priest was the pre- 
siding officer whenever the business to be transacted 
related to the affairs of the church, but when secu- 
lar matters were the subject of consideration, the 
syndic presided. These two officers were important 
factors in the scheme of local government, and per- 
formed executive functions in carrying into execution 
the decrees of the assembly. 

The same communistic feature characterized the sys- 
tem of land tenure, which the peasants brought with 
them from France. Each householder had his own sep- 
arate dwelling and piece of ground adjacent thereto for 
his own use, but he also had an interest in a tract of 
arable land which was enclosed and tilled by the vil- 
lagers in common and also in the common pasture land 
which was beyond and outside the enclosure. 1 The 
village assembly decided everything relating to the 
proper cultivation of this land, determined the time 
for ploughing, seeding and harvesting and even 
regulated the form and arrangement of the dwell- 
ings. While the commandant was the chief of- 
ficer of the district yet the form of government 
was not military and did not have the paternal 
features usually incidental to the government of royal 
provinces. On the other hand, the communalism, which 
characterized its local form, distinguished it from a 
pure democracy such as was exemplified by the New 
England town meeting; and the total absence of class 
distinctions as well as other features rendered it en- 
tirely different from the Virginia county and parish 
system. All these different theories of local govern- 
ment were finally merged in the present system with- 
out violating the rights of the individual. 

This peculiar land tenure and the titles deduced 

1 Howard's Local Constitutional Hist, of U. S. 429. 



from the old French grants have given rise to unusual 
legal questions which have been submitted to the courts 
of this State for adjudication on several occasions, and 
their proper determination has required an exhaustive 
investigation of such evidence as can be found relating 
to the contents of the original documents and the law 
applicable to their construction. As a result, the 
opinions of the Supreme Court in these cases furnish 
much valuable material for the student or lawyer who 
desires to pursue the subject further than the limits 
of this treatise will permit. 

In connection with the decision of an early case, a 
learned and accurate account of the history of the 
lands held in common by the inhabitants of Cahokia 
is furnished by Judge Breese x and in a later case the 
full text of some of the historical documents relating 
to this subject is shown. 2 In another case the opinion 
of the court narrates the history and contents of the 
original French grant to the inhabitants of Kaskaskia 
and shows that the rights of the grantees and their 
successors must be determined by a reference to the 
Code of Napoleon and the Custom of Paris as the 
result of the royal edict of France in 1712. 3 And 
in a recent case a full historical review is given 
of the settlement at Kaskaskia and the origin of the 
title to the common lands belonging to the people of 
that community. From this decision it appears that 
prior to the French occupancy the title to the lands 
was possessory only and was vested in the Indian 
tribes and their members who inhabited the locality. 
The connection of the French with the Illinois terri- 
tory commenced with the explorations of Marquette 
and Joliet in 1673, which were followed by the occupa- 
tion by La Salle and his comrades in 1682 and con- 
tinued until the Treaty of Paris in 1763. The mission 
of the Immaculate Conception was established by 
Marquette in 1675 near the present location of Utica 

1 Hebert et al. v. Lavalle, 27 111. 450. 

2 Lavalle v. Strobel, 89 in. 371. 

3 Trustees of Commons v. MeClure, 167 HI. 23. 



This mission was afterwards transferred to Kaskaskia, 
and sometime in the early part of the last century the 
common lands of Kaskaskia were granted to the parish 
by the French government. The record of this grant 
has been lost, but its existence is well established by 
a patent issued by the Governor of Louisiana on Au- 
gust 14, 1743, confirming the right of possession of 
these lands in the inhabitants of the parish of the Im- 
maculate Conception at Kaskaskia. 1 This brief his- 
torical sketch serves to substantiate what has been said 
regarding the system of land tenures in the early 
French settlements of Illinois. 

Under English Rule. — The French and Indian war 
was terminated by the Treaty of Paris in 1763 and with 
the signing of that treaty the dominion of France over 
the Illinois territory ceased. While this territory was 
ceded to England by the terms of the treaty, yet it 
should be remembered that the English had claimed 
it previously upon various grounds and in asserting 
these claims had been continually encroaching upon 
the French settlements for many years. At the time 
peace was declared many of the French outposts par- 
ticularly in the Ohio valley were in the actual posses- 
sion of the British, but this was not the case with Fort 
Chartres or the French settlements in Illinois. 

At this time it was the policy of the English law 
in dealing with countries acquired by conquest or ces- 
sion to allow the existing laws and institutions of the 
country to remain in force until superseded by English 
enactments. 2 This probably explains the reason for 
the fact that for over ten years or from 1763 to 
1774 the territory remained in the actual possession 
of the French although under the military control of 
the English. After the Treaty of Paris was signed in 
February 1763, the British ministry considered the 
policy to be pursued with reference to the extensive 
domain which had been acquired and as a result of 
these deliberations a royal proclamation was issued in 

1 Stead v. Commons of Kaskaskia, 243 111. 242. 

2 Campbell v. Hall, Can. Const. Docs. 1759-1791, 366-372. 



October of that year providing a civil government 
for Quebec and the Floridas, but which did not mention 
the settlements in the Illinois territory. 1 In fact, the 
deliberations of the ministry and the correspondence 
incidental thereto indicate that there was never any in- 
tention whatever of furnishing a civil government for 
the Illinois villages and that a plan for the military 
control of the territory was the only scheme of gov- 
ernment considered. 

In 1764 Gen. Thomas Gage who was then the com- 
mander of the British army in America and stationed 
in New York, issued a proclamation addressed to the 
inhabitants of the territory, relating to certain rights 
which had been guaranteed to the people by the treaty 
of Paris, such as freedom of religion and the liberty 
of remaining within English territory or removing 
therefrom, but which does not indicate in any way 
whether a civil or military government is to be estab- 
lished. It seems apparent from all the information 
that can be obtained regarding this period that the 
British military commanders in Illinois had no com- 
mission whatever to govern the territory and that the 
only authority which they possessed was of the general 
character which is imposed upon a military officer in 
cases where there are no legally constituted civil 
officers. 

In 1771 a general assembly of the people of Illinois 
was held at Kaskaskia, which formulated a demand 
upon the English authorities for civil institutions sim- 
ilar to those embodied in the Connecticut charter. 
This action indicates some familiarity with American 
colonial history, as the Connecticut charter was the 
most liberal of any granted to the New England col- 
onies. This demand did not receive the approval of 
Gen. Gage, the British commander-in-chief or of Lord 
Hillsborough, who was then the head of the British 
Colonial Office. His successor, Lord Dartmouth, also 
rejected the demands of the people of Illinois for a 

1 Can. Const. Does. 1759-1791, 119-123. 



popular form of government. He did however con- 
descend to prepare a statement of his own views as to 
the proper form of government for the territory, which 
provided that all powers should be vested in royal ap- 
pointees and none exercised by the people. This docu- 
ment which he called "A Sketch of Government for 
Illinois," was considered by the people in another 
assembly at Kaskaskia and indignantly rejected. A 
protest against its adoption was forwarded to Lord 
Dartmouth in which his plan was characterized as 
' ' oppressive and absurd, much worse than that of any 
of the French or even of the Spanish colonies. ' ' They 
also did not hesitate to assert that if such a form of 
government should be established, "it could be of no 
long duration. There would exist the necessity of its 
being abolished.' ' 

In view of the situation disclosed by these records, 
the general statement seems warranted with reference 
to the period between 1763-1774, that notwithstanding 
the change of sovereignty resulting from the treaty of 
Paris, the private law remained as it had been under 
the French regime. It was a government de facto, 
but without legal foundations. 1 In 1774 a plan 
for the government of the entire territory north 
of the Ohio Eiver was embodied in the Quebec Act 
which was passed by Parliament in that year. This 
act never became operative in the Illinois territory 
owing to the intervention of the American Eevolution, 
which required the representatives of the English gov- 
ernment in America to devote their entire attention 
to other sections of the country. During the entire 
period of its control, no form of civil government was 
furnished by England for the people of Illinois. 

Upon the outbreak of the Eevolutionary War, the 
people of Illinois early showed their sympathy with 
the rebellious colonists of the Atlantic coast by organ- 
izing frequent expeditions against the British posts in 
the Western territory. These hostile acts were com- 

^ee Carter's Great Britain and the Illinois County, Chap. II. 



mitted with impunity because the British forces were 
fully occupied elsewhere. 

The principal revolutionary event in the history of 
Illinois was the capture of Kaskaskia on July 4, 1778, 
by Gen. George Eogers Clark, acting under a commis- 
sion from Patrick Henry, Governor of Virginia. His 
achievements have been a favorite topic with histo- 
rians and novelists so that the main features of his cam- 
paign are well known to all readers. The story of his 
expedition and its results has been told briefly by an 
Illinois author who loved to write of the history of his 
State : 

' * This young Virginian, with a handful of men, over 
great obstacles and through great privations, captured 
the British garrisons at Kaskaskia in what is now 
Illinois, and at Vincennes, in what is now Indiana. In 
his wonderful march across the flooded prairies and 
the swollen streams of southern Illinois, he was accom- 
panied by battalions composed of the young French- 
men of Illinois, who quitted themselves like men. The 
whole region now comprised in the States of Ohio, 
Indiana, Michigan, Illinois and Wisconsin was made 
a single county of Virginia, under the name of Illinois, 
and governed by officials, appointed by the Old Do- 
minion. Clark's campaign and Virginia's subsequent 
occupancy of the country turned the scale in our favor 
at the negotiation of the Treaty of 1783, when Spain 
strove hard to acquire all this region by virtue of her 
expedition to St. Joseph, and France, our ally, but 
already jealous of the new nation, was quite willing 
that she should have it. George Bogers Clark, by 
deeds mainly occurring on the soil of Illinois, added to 
our country, a territory of more than two-thirds of 
the area of the original thirteen colonies." 1 

The period of foreign control over Illinois which had 
continued for nearly a hundred years ceased when the 
territory became part of a Virginia county as the 
result of Clark's expedition. 



1 Mason's Chapters from niinois History, 288. 



CHAPTER II. 

ILLINOIS FROM 1774 TO 1818. 

A Virginia County. — As already indicated, that part 
of the Mississippi valley lying north of the Ohio River 
was claimed by Virginia under some of the early 
grants from the British crown, and accordingly when 
the news of the results of Clark's expedition was 
received, the general assembly believed that the time 
was opportune for asserting these claims. In Octo- 
ber 1778, an act was passed by the Virginia legis- 
lature, entitled "An Act for establishing the County 
of Illinois and for the more effectual protection and 
defense thereof.' ' This act authorized the governor 
with the advice of his council to appoint a county 
lieutenant or commander-in-chief who was given the 
power of appointing subordinate officers and pro- 
vided that the religion and customs of the people 
should be respected and that all civil officers "to 
which the inhabitants have been accustomed, nec- 
essary for the preservation of the peace and admin- 
istration of justice shall be chosen by a majority of the 
citizens in their respective districts to be convened for 
that purpose by the county lieutenant or commandant 
or his deputy." In this way a democratic form of 
government was inaugurated in Illinois. 

Pursuant to the provisions of this Act, Governor 
Patrick Henry appointed Colonel John Todd of Ken- 
tucky as the first commandant of the County of Illinois. 
Fortunately for posterity, Col. Todd's record book has 
been saved from the destruction which has come to 
nearly all the early records of Illinois, and from its 
pages we are able to learn something of the progress 
of popular government under his administration. The 
first pages of this book exhibit the letter of appoint- 
ment, dated Dec. 12, 1778 from the Governor to Col. 

(9) 



10 

Todd which in addition to its formal parts contains 
many wise and statesmanlike suggestions as to the 
policy which should be pursued by the new government. 
This letter of instruction was probably regarded by 
its recipient as a warrant of authority of quite as much 
importance as the act of the Virginia Legislature on 
which it was based. For that reason, a brief review 
of the contents becomes necessary in order to fully ex- 
plain the governmental measures adopted by the Vir- 
ginia commandant. He is instructed to "take care to 
cultivate and conciliate the affections of the French 
and Indians/ 9 for the reason that, "The present crisis 
rendered favorable by their disposition may be im- 
proved to great purposes, but if, unhappily, it should 
be lost, a return of the same attachments to us may 
never happen.' ' The letter then continues as follows: 
"Although great reliance is placed on your prudence 
in managing the people you are to reside among, yet 
considering you as unacquainted in some degree with 
their genius, usages, and manners, as well as the 
geography of the country, I recommend it to you to 
consult and advise with the most intelligent and up- 
right persons who may fall in your way." 

The new commandant is then warned that the mili- 
tary is subordinate to the civil branch of the govern- 
ment ; that the property rights and titles of the natives 
must be respected; that friendly relations should be 
cultivated with the Spanish commander near Kaskas- 
kia ; and he is instructed i ' on all occasions to inculcate 
on the people the value of liberty, and the difference 
between the state of free citizens of this Common- 
wealth, and that of slavery, to which the Illinois was 
destined and that they are to have a free and equal 
representation, and an improved jurisprudence." 

These few extracts from this remarkable letter, as 
well as its remaining contents show that the attention 
of the Virginia commandant was to be directed to the 
conciliation of the French and Indian inhabitants, the 
selection of competent subordinate officers, the estab- 



11 

lishment of a civil government, the promotion and de- 
velopment of republican institutions, the administra- 
tion of justice, and the exertion of constant diligence 
for the welfare of the people. 

The new governor did not reach his post of duty 
until May, 1779. His first effort was to establish a 
local militia organization which was accomplished by 
the issuance of commissions to subordinate officers in 
the three districts of Kaskaskia, Cahokia and Prairie 
du Rocher. 

As the statute creating the County provided that all 
civil officers should be chosen by the people in each 
district, Governor Todd speedily called an election for 
that purpose which was the first popular election ever 
held in Illinois. His record book shows that judges 
and sheriffs were chosen in each of the three districts 
above named. These officers followed the statutes ot 
Virginia in the discharge of their duties. 

Commerce and local trade also received attention 
from the governor as appears by the issuance of 
licenses to merchants, in which provision was made for 
the observance and protection of the rights and prop- 
erty of individuals. Owing to the depreciation in 
value of the continental currency, the new government 
was greatly hampered in its financial measures. On 
June 11, 1779, the governor sent a message to the court 
at Kaskaskia in which he discussed the question and 
recommended a retirement of a portion of the money 
in circulation and a plan for the gradual redemption 
thereof. These recommendations were in marked con- 
trast to the plan generally favored by financiers of 
that period of curing such evils by issuing more money. 
A scheme was also presented by him for obtaining a 
public loan by popular subscription to be secured by a 
valuable tract of land set apart for that purpose. 

A proclamation was also issued for the purpose of 
quieting real estate titles and prescribing a method for 
establishing and registering such titles. This was 
deemed necessary not only for the protection of pri- 



12 

vate interests, but also to guard the public domain 
against adventurers and speculators who would doubt- 
less flock to the territory and seek the acquisition of 
large tracts of land by questionable methods. 

These measures indicate sound theories of govern- 
ment ; and it is evident that during the period of Vir- 
ginian control the people of Illinois had their first 
experience with republican institutions. The original 
record book kept by Governor Todd and his deputies 
is now in the possession of the Chicago Historical So- 
ciety and its pages afford almost the only information 
obtainable as to the government of Illinois from 1778 
to 1784. 

The Virginia Cession. — The treaty of peace between 
the United States and Great Britain was concluded 
at Paris on September 3, 1783 and was ratified by 
Congress on January 14, 1784. For several years 
prior to that time there had been much discussion 
as to the acquisition by the Federal Government 
of the lands in the Ohio and Mississippi valleys 
claimed by Virginia and other States under ancient 
charters and under various treaties with the In- 
dians. On January 2, 1781 an act was passed by 
the Virginia legislature proposing to cede to the 
United States all lands northwest of the Ohio Eiver 
upon certain conditions. This proposition was under 
consideration by various congressional committees 
until September 13, 1783, on which date a committee 
report was adopted by Congress, accepting the orig- 
inal proposition with some slight modifications. 

On December 20, 1783 a further act was passed by 
the Virginia legislature authorizing its delegates in 
Congress to convey to the United States all rights of 
that commonwealth to the territory northwest of the 
Ohio River. This act recites the previous steps taken 
in the matter substantially as above stated and sets 
forth the conditions upon which the conveyance is to 
be made, all of which are of only historical interest at 
the present time. 1 In conformity with these proceed- 

1 For full text of act, see Hurd's Statutes, page 16. 



13 

ings the deed of cession, dated March 1, 1784, and 
signed by Thomas Jefferson, Samnel Hardy, Arthur 
Lee and James Monroe, the Virginia delegates in Con- 
gress, was executed and accepted. 1 

The claims of New York to this territory were ceded 
on March 1, 1781, and other deeds of cession were made 
by Massachusetts on April 19, 1785, by Connecticut 
on September 13, 1786, by South Carolina on August 
9, 1787, by North Carolina on February 25, 1790, and 
by Georgia on April 24, 1802. Of all these claims that 
of Virginia seems to have been the most substantial, 
not so much by virtue of her ancient charter as by 
right of conquest and occupation. 

By these several cessions from seven different States 
the title of the United States to the territory of Illi- 
nois, as well as that of other States east of the Missis- 
sippi Eiver, was perfected. 

From 1784 to 1787. — Upon the acquisition by the 
United States of these public lands, it became neces- 
sary to provide a suitable form of government for the 
territory. This problem occupied the attention of 
Congress for three years and during that period 
the civil government of Illinois was neglected by 
both Virginia and the United States to such an ex- 
tent that its affairs were subject to local regulation 
only. The courts which had been established by 
Virginia ceased to perform their functions and 
public officers did, not discharge their duties. The 
urgent necessity of providing some form of govern- 
ment for the inhabitants of the territory was apparent 
and on March 1, 1784, a committee was appointed of 
which Thomas Jefferson was chairman, to prepare and 
submit a plan. 

This committee made two reports, the second of 
which was adopted, but nothing was done toward car- 
rying its recommendations into effect. In August, 

1 See Hurd's Statutes, p. 18. 



14 

1786, the inhabitants of Kaskaskia petitioned Congress 
for relief and requested that body to provide some 
means by which a better government could be formed. 
Congress continued to give this important matter des- 
ultory consideration until 1787 when new interest was 
aroused by the activity of certain creditors of the gov- 
ernment, who conceived the idea of converting their 
indebtedness into land, of which the government then 
had an ample supply. These gentlemen formed an 
organization and insisted that a stable form of govern- 
ment must be provided for the Western territory, 
otherwise the grants of land which they proposed to 
accept in payment of their debts would be worthless. 
In this way an opportunity was afforded for the nation 
to discharge a large amount of indebtedness and at the 
same time to build up its Western frontier. 

Congress now became active and displayed energetic 
interest in the matter. Apathy and delay ceased. A 
new committee was appointed on July 9, 1787, and on 
July 11, 1787, a new ordinance was reported to Con- 
gress, which was adopted on July 13, 1787. This was 
the famous ordinance of 1787, which marks the begin- 
ning of civil government in Illinois, and of which the 
effects have been probably more ' ' distinct, marked and 
lasting'' than those of any other single enactment. 

Under the Ordinance of 1787. — This law provided 
a temporary form of government for a vast and 
partially unexplored territory sparsely inhabited by 
Indians, half-breeds, Frenchmen, pioneers and ad- 
venturers from the Eastern States and other parts 
of the world. It was the fundamental law which 
influenced and shaped the subsequent legislation of 
the Northwestern States. It embodied in its terms 
many of the principles which had been announced in 
the Declaration of Independence and in the constitu- 
tions of the older states and thus secured to the inhab- 
itants and their posterity the social and political 
benefits which had been derived from the enlightened 
theories of the signers of the Declaration. Among 



15 

these benefits may be mentioned the right to freedom 
of opinion and worship, trial by jury, the writ of 
habeas corpus and proportionate representation. 
Other important provisions of the ordinance were 
those forbidding slavery in the territory and estab- 
lishing the law of inheritance by which the property of 
an intestate descended equally to his children. These 
measures prevented the formation of a landed aris- 
tocracy and tended to secure a body of citizens upon 
a reasonable basis of equality in the ownership of 
land. 

The form of government provided by this ordinance 
was not particularly liberal in the matter of allowing 
the people to exercise the right of local self govern- 
ment. The governor of the territory was appointed 
by Congress, and was vested with authority to fill all 
of the minor offices. He was required to reside in the 
district and to have a freehold estate therein, in one 
thousand acres of land, while in the exercise of hjis 
office. Three judges were also appointed, who with 
the governor were given power to prescribe the laws, 
subject to the approval of Congress until such time as 
the territory should have a population of 5,000 inhab- 
itants. This population having been attained, the in- 
habitants were authorized to elect a general assembly, 
but the elective franchise could be exercised only by 
citizens who had a freehold in at least fifty acres of 
land ; and a representative was required to be a citizen 
of the United States, a resident in the district from 
which he was elected and the owner in fee simple of 
at least two hundred acres of land in the district. 1 

These somewhat narrow provisions were modified 
by amendments in 1809, authorizing the people to 
elect the council which formerly had been appointed 
by the president and a member of Congress, previ- 
ously chosen by the legislature and in 1811 the prop- 
erty qualification of voters was removed, and the right 
of suffrage was conferred upon those male citizens 



*For full text of the ordinance see Hurd's Statutes pages 18-22. 



16 

who paid a tax and had resided in the territory for 
one year. The ordinance of 1787 with its amendments 
and certain acts supplemental thereto which will be 
mentioned presently was the organic law of Illinois 
until its admission as a state. 

As a Part of Indiana. — On May 7, 1800, an act 
was passed by Congress dividing the Northwest 
Territory, and for the purpose of temporary govern- 
ment creating a new territory to be called Indiana 
and consisting of all that part of the Northwest 
Territory lying west of a "line beginning on the 
Ohio, opposite the mouth of the Kentucky River, 
and running thence to Fort Recovery, and thence north 
until it shall intersect the territorial line between the 
United States and Canada.' ' This act provided sub- 
stantially that all the provisions of the original ordi- 
nance of 1787 should be applicable to the new terri- 
tory. 1 

The Territory of Illinois.— On February 3, 1809, 
an act was passed dividing Indiana Territory into 
two separate governments and containing provis- 
ions as to the government of the new territory 
similar to those of the act of May 7, 1800. By 
this act was restored the name of Illinois which 
had been abandoned in official matters since the organ- 
ization of the Northwest Territory. The boundaries 
of the territory were substantially the same as those 
of the present State and the seat of government was 
established at Kaskaskia. 

The government of the new territory was organized 
by the appointment of Ninian Edwards as governor 
and Nathaniel Pope as secretary. Three territorial 
judges were also appointed. For the first three years 
the attention of the executive officers of the territory 
was directed mainly toward the suppression of Indian 
outbreaks and the civil powers of the government were 
exercised solely by these appointive officers. 

1 For text of the act, see Hurd 's Statutes, p. 23. 



17 

In 1812 an election was held at which the question 
of establishing a legislative branch of the government 
was submitted, and it was decided affirmatively by an 
almost unanimous vote. At this time there were only 
about three hundred voters in the territory having the 
required qualifications of freeholders specified by the 
ordinance of 1787. The results of this election were 
reported to Congress and on May 2, 1812, an act was 
passed by which Illinois was made a territory of the 
second grade, and the right of suffrage was extended to 
all male inhabitants who were twenty-one years of age 
and who paid taxes and who had resided in the terri- 
tory for one year. An election was then held in each 
of the five counties of the territory, viz: St. Clair, 
Eandolph, Madison, Gallatin and Johnson, to choose 
five members of the council and seven representatives 
in the general assembly. This election was held in 
October, 1812, and the list of the successful candidates 
shows that the first legislative body ever chosen in 
Illinois contained no lawyers. 

The general assembly met at Kaskaskia on Novem- 
ber 25, 1812, and after organizing both branches by the 
election of the necessary officers proceeded to pass 
an omnibus bill re-enacting all the laws passed by the 
Indiana legislature and by the territorial governor and 
judges of Illinois, which were then in force. Eev- 
enue laws were also passed providing for taxes upon 
real and personal property and for licenses to mer- 
chants requiring them to pay a stated fee for the 
privilege of being allowed to transact business. At 
subsequent sessions of the legislature, laws were 
passed establishing courts, dividing the territory into 
judicial circuits, incorporating the Bank of Illinois and 
other banks, establishing the counties of Franklin, 
Union, Washington and other counties, providing 
bounties for killing Indians and upon other subjects. 

Admission as a State.— Neither the constitution of 
the United States nor the ordinance of 1787 pre- 
scribes the method of procedure to be followed in 



18 

organizing and admitting new states to the union. 
Consequently there has been little uniformity in 
the rules and limitations imposed, each application 
having been considered on its own merits. In fact 
several of the States have been admitted without 
the passage of any enabling act. The territorial 
legislature at its session held in January, 1818, directed 
its delegate in Congress to present a petition request- 
ing Congress to enact a law enabling the people of 
Illinois to form a State government. A bill for that 
purpose was introduced on April 7, 1818, which after 
various amendments became a law on April 18, 1818. 1 

One of the important amendments was that which 
fixed the northern boundary line as at present. The 
bill as originally drawn had fixed the northern bound- 
ary line of the new State at the parallel of latitude of 
41° 39" north, being at a point considerably south of 
the present boundary. Mr. Nathaniel Pope the Illinois 
delegate in Congress moved to amend the paragraph in 
question in such away as to fix the boundary at north 
latitude 42° 30" thus giving the State of Illinois juris- 
diction over the southwestern shore of Lake Michigan. 
In support of this amendment Mr. Pope explained that 
if the northern boundary was established as proposed 
by the bill, it would have the tendency of confining the 
commerce of the future State to the Mississippi and 
Ohio Eivers, thus bringing the State into such close 
relations with the south that it might become a sympa- 
thizer with any attempted secession of the southern 
States ; while, on the other hand, if the boundary was 
fixed as proposed by his amendment the effect would 
be to unite Illinois with the States of Indiana, Ohio, 
New York and Pennsylvania by a strong bond of com- 
mon interest by the opening of a canal connecting Lake 
Michigan with the Mississippi Biver. These argu- 
ments prevailed, and Illinois thereby gained a strip of 



1 For full text of the Enabling Act, see Hurd's Statutes p. 25. 



19 

territory which has been of vast importance in her 
growth and development. 

Another amendment of vital importance related to 
the question of population. Under the ordinance of 
1787, a population of 60,000 free inhabitants was requi- 
site for the admission of a State, but it was also pro- 
vided in that document that ' c so far as it can be consist- 
ent with the general interest of the confederacy, such 
admission shall be allowed at an earlier period, and 
when there may be a less number of free inhabitants 
than sixty thousand. " It was well known that Illinois 
did not have 60,000 inhabitants at that time, and there- 
fore an amendment was offered and adopted reducing 
the requisite population to 40,000. Even with this 
substantial reduction, it is improbable that an honest 
census would have shown a sufficient population. 
Fearing such a result, it is said that the officer in 
charge instructed his deputies to count every body 
passing along the highway, regardless of whether they 
were actual residents or mere travelers or explorers. 
In this way many persons were counted several times, 
as they met different census takers while journeying 
through the territory. As a result of these methods 
it was found that Illinois had the requisite population 
of 40,000, but according to the subsequent revision of 
the census, the number of actual inhabitants was found 
to be 34,620, the smallest population of any of the 
States at the time of admission. 1 

Upon the completion of this census an election was 
held on July 6, 7 and 8, 1818 for the selection of dele- 
gates to a constitutional convention, which assembled 
at Kaskaskia on August 3, 1818. This convention was 
in session until August 26, 1818, but no official record 
of their daily proceedings has been preserved. The 
first constitution of the State was adopted by this con- 
vention, and on the day of its adjournment an ordi- 
nance was passed accepting the conditions imposed by 
the Enabling Act. 2 

1 See Senate Doc. 49 Congressional Report 15. 

2 See Hurd's Statutes, page 27. 



20 

This constitution was transmitted to Congress for its 
approval and after some debate principally upon the 
wording of the anti-slavery provision, was approved 
by a vote of 117 yeas to 34 nays. The passage of this 
resolution marks the beginning of the constitutional 
history of Illinois as a State. 



CHAPTEE III. 

THE CONSTITUTION OF 1818. 

General Outline. — All students of this document 
have recognized its similarity to the constitutions of 
Kentucky, Indiana and Ohio which were closely fol- 
lowed by the Illinois constitutional convention. With 
the exception of some provisions relating to slavery, 
the bill of rights is almost identical in all these instru- 
ments, and many paragraphs in the Illinois constitu- 
tion although differently arranged and numbered are 
exact copies from the other constitutions. It con- 
tained no provision for its submission to popu- 
lar vote for ratification, and required a popular 
election in the case of only a limited number of 
executive officers, viz: governor, lieutenant-governor, 
sheriff, coroner and county commissioners. Other 
executive officers such as the secretary of state, 
treasurer, and auditor of public accounts were to be 
appointed by the governor or the general assembly. 
The executive power of the state was vested in the 
governor solely. 

The legislative power was vested in a general as- 
sembly consisting of a senate and house of represen- 
tatives, the members of both to be chosen by the 
people. No veto power was granted to the executive, 
but the governor and the judges of the supreme court 
were constituted a council to revise all bills passed by 
the general assembly. In case the council disapproved 
of a bill, it was returned to the house where it origin- 
ated with a statement of the objections to it. A re- 
consideration of the bill was then required and the ap- 
proval of a majority of all the members of both houses 
was necessary for its passage. 

The judicial power was vested in a supreme court 
and such inferior courts as should be established. The 

(21) 



22 

supreme court was composed of a chief justice and 
three associates all of whom were to be chosen by joint 
ballot of both branches of the general assembly. The 
term of office of those first chosen was to expire at the 
end of the first session of the general assembly to be 
held after January 1, 1824. After that time they were 
to hold office during good behavior. The jurisdiction 
of the court was left to the determination of the legis- 
lature. 1 

Local Government under the Constitution of 1818. — 
This constitution made no mention whatever of cities 
or other municipalities ; but recognizing the county as 
the unit for local government, it provided that in each 
county there should be elected three county commis- 
sioners to transact all county business, whose powers 
and duties should be regulated and defined by law. 
Another paragraph specified that a competent number 
of justices of the peace should be appointed in each 
county in such manner as the general assembly might 
direct. 

These are the only provisions of the constitution of 
1818 affecting the question of local government, but it 
is important to note them, because they formed the 
basis for reproducing in Illinois the Virginia system, 
by which the county was the principal agency in the 
regulation of local affairs. The Board of County 
Commissioners which was given the entire manage- 
ment of county affairs, corresponded with the Virginia 
County Court, except in two particulars — they were 
elected by the people and exercised no judicial func- 
tions. 

Without going into the details of local government 
under the constitution of 1818, it may be stated broadly 
that the Southern system of local government was in 
the ascendency and there were but few indications 
that the local institutions of New England and the 



Tor full text of the Constitution of 1818, see Hurd 's Statutes pages 

28-37. 



23 

Middle States would ever be the choice of the greater 
portion of the inhabitants. 

"But even at this time there had been planted in 
Illinois and throughout the entire West a germ, capa- 
ble under right conditions, of developing a highly or- 
ganized township system.' ' The above quotation 
refers to one of the propositions of the enabling act 
accepted by the people of the State whereby one sec- 
tion in each township was set apart for school pur- 
poses. This was followed by the enactment of laws 
needed for the proper administration of school affairs 
by which the township was made a body corporate for 
school purposes and provision was made for the elec- 
tion of school officers by the people. In this way local 
government under the township system, commenced 
in Illinois and in a short time the township lines formed 
the boundaries of districts created for other govern- 
mental purposes, such as elections, constructing roads 
and caring for the poor, and "as New England town- 
ship life grew up around the church, so western local- 
ism finds its nucleus in the school system.' ' 

Still another agency affecting the character of local 
government in Illinois was the slavery question. Illi- 
nois, having been admitted to the Union as a free State, 
was no longer attractive territory to immigrants from 
the South, and with the admission of Missouri as a 
slave State under the Compromise Bill of 1820, this 
class of settlers ceased locating in Illinois, and passed 
on to Missouri where there were no restrictions upon 
the owning of slaves. In the meantime the northern 
counties began to be filled with people from New Eng- 
land and the Middle States, who had been accustomed 
to the township system as the basis of local institu- 
tions. In this way a rivalry arose between the north- 
ern and southern ideas which caused considerable strife 
and bitterness of feeling with reference to legislative 
acts and local matters, but all of the time the northern 
idea was becoming more and more dominant. 

Defects in the Constitution of 1818. — As already 



24 

indicated, but few elective offices were created by 
the constitution, thus evidencing an unwillingness 
to bestow extensive powers upon the people. Pos- 
sibly this policy was justifiable at the time, but a 
serious error was committed when the appointing 
power was vested in the legislature by the provision 
that "an auditor of public accounts, an attorney gen- 
eral and such other officers of the State as may be 
necessary may be appointed by the general assembly." 
So long as governor and general assembly were in har- 
mony, the former appointed all officers, except those 
specifically named, including state's attorneys, record- 
ers and such other officers as the laws required, but 
when a difference of opinion arose between the execu- 
tive and legislative branches of the government, the 
]atter would deprive the former of his appointing 
power, thus producing uncertainty as to tenure in ad- 
ministrative offices and giving rise to political in- 
trigues and combinations. 

Another very objectionable feature in the constitu- 
tion was the absences of limitations upon the action of 
the legislature and the almost unrestricted grant of 
power to that branch of the government. This re- 
sulted in much ill considered legislation which proved 
very expensive to the citizens, such as the measures 
relating to the charter of the state bank, staying exe- 
cutions, the selling of school and seminary lands, pre- 
mature schemes for internal improvements and many 
other acts very damaging to the finances and reputa- 
tion of the State. 

Judicial Decisions. — During the period while the 
Constitution of 1818 was in force the volume of litiga- 
tion was not large. The first term of the Supreme 
Court was held in December, 1819, at Kaskaskia, and 
one volume of the reports is sufficient to hold all 
of the decisions from that time up to and includ- 
ing the December Term, 1832, held at Vandalia, and 
nine volumes only are required for all the cases adjudi- 



25 

cated up to the date when the constitution of 1848 went 
into effect. 

Most of the litigation of that period was of a petty- 
character and few of the civil cases involved amounts 
exceeding the present jurisdiction of a justice of the 
peace. In some cases, however, grave constitutional 
questions were adjudicated and important precedents 
were established which have influenced and controlled 
judicial decisions down to the present time. For this 
reason attention will be given to some of the more 
important of the early decisions of the court upon con- 
stitutional and public questions. 

The court considered the powers of the departments 
of the government under the Constitution and their 
relations to each other, holding that the Constitution 
is a limitation upon the powers of the legislative de- 
partment of the government, but that it is also to be 
regarded as a grant of powers to the other depart- 
ments, and that neither the executive nor the judiciary- 
can exercise any authority or power except such as 
is clearly granted by the Constitution. The particular 
question under consideration related to the power of 
the governor to remove a Secretary of State appointed 
by one of his predecessors. The court held upon this 
question that under the Constitution of Illinois the ap- 
pointing power did not have the power of removal 
from office and that the Secretary of State having 
been once regularly appointed could not be removed at 
the will and pleasure of the governor, the power of ap- 
pointment being suspended until a vacancy occurred; 
that when the Constitution creates an office and leaves 
the tenure, undefined and unlimited, the officer holds 
during good behavior and until the legislature by law 
limits the tenure to a term of years or authorizes an 
officer of the government to remove the officer in ques- 
tion at will or for good cause. 1 

Similar questions relating to the power of the legis- 
lature under the Constitution were considered in other 



1 Field v. People, 2 Scam. 79. 



26 

cases, and a certain special act was declared unconsti- 
tutional upon the ground that the legislature was at- 
tempting to exercise judicial powers in ascertaining 
the indebtedness between two parties and directing the 
application of the property of one to the payment of 
the other. 1 

It was also held that the legislature of a State could 
pass any law not prohibited by its own constitution 
and that of the United States, and beyond the limita- 
tions and restrictions contained in those Constitutions 
it is as absoluely omnipotent and uncontrollable as 
Parliament, (Mason v. Watt, 4 Scam. 127) ; and that 
courts ought not to declare a law unconstitutional 
unless its repugnance to the Constitution is direct and 
clear, and that no statute should be allowed a retro- 
spective operation unless the will of the legislature to 
that effect is declared in terms so plain and positive 
as to admit of no doubt. 2 

Another decision of far reaching importance in the 
subsequent litigation of the State is that of Bradley v. 
Case, 3 Scam. 585, in which was determined the power 
of the legislature to authorize a sale of the 16th section 
of lands in the State of Illinois which had been set 
apart by the Enabling Act and the Ordinance of the 
Constitutional Convention for the support of schools. 
In this case it was held that the Enabling Act and the 
Ordinance constitute a valid and binding contract be- 
tween the general government and the State, and that 
neither of the high contracting parties can change, 
modify or alter the stipulations and conditions of the 
same without the consent of the other. By this com- 
pact the State of Illinois is vested with the legal title 
to the land contained in Section 16 in each township 
or the lands selected in lieu thereof; the State is a 
purchaser for a valuable consideration and does not 
hold the lands under a charitable trust; and it rests 



1 Lane v. Dorman, 3 Seam. 237. Edwards v. Pope, 3 Seam. 465. 

2 Bruce v. Schuyler, 4 Gil. 221. 



27 

with the State to determine in what manner the lands 
can be best applied to the objects and purposes for 
which they were purchased. The government of the 
United States is not and never was a donor for char- 
itable purposes. 

In Sawyer v. City of Alton, 3 Scam. 127, it was again 
held by the court that the Constitution of Illinois is not 
to be regarded as a grant of power, but rather as a re- 
striction upon the powers of the legislature, and it is 
competent for the legislature to exercise all powers 
not forbidden by that instrument, nor restricted by the 
general government nor prohibited by the Constitution 
of the United States. 1 

The legislature was denied the power of repealing a 
law by joint resolution of the two houses without such 
resolution having undergone the three several readings 
prescribed by the Constitution, and without its having 
been submitted to and having received the approval 
of the Council of Eevision. 2 

The elective franchise was bestowed by statute upon 
every white male inhabitant of the age of 21 years 
who had resided in the State six months immediately 
preceding any general election, and the court held that 
each State has the undoubted right to prescribe the 
qualifications of its voters ; that the act of naturaliza- 
tion does not confer on the individual naturalized the 
right to exercise the elective franchise ; that the qualifi- 
cation which the voter is required to possess in a con- 
gressional election depends entirely upon the power of 
the State in which the elective franchise is exercised, 
being purely dependent upon the municipal regulations 
of the State, and that unless the legislature shall make 
citizenship an un disputable qualification to the enjoy- 
ment of the elective franchise, the Supreme Court 
cannot add such a prerequisite by construction. 3 

1 See also People v. Keynolds, 5 Gil. 1. 

2 People v. Campbell, 3 Gil. 466 u . 

3 Spragins v. Houghton, 2 Seam. 377. 



28 

Under the Constitution of 1818 the legislature had 
power to grant irrevocable exemption from taxation to 
a corporation as was done by the provision in the char- 
ter of the State Bank of Illinois, exempting its prop- 
erty from taxation which was held to be a contract 
binding on the legislature. The doctrine has been sus- 
tained by the Supreme Court in the case of similar 
exemptions granted to other corporations. 1 

The Constitution of 1818 provided that the judicial 
power of the State should be vested in one Supreme 
Court and such inferior courts as the General Assem- 
bly should from time to time ordain and establish. In 
an early decision the Supreme Court denned the term 
"inferior court" as used in the Constitution and 
stated the distinction between superior and inferior 
courts. It held that the circuit courts were not in- 
ferior courts in the common law sense of that term, 
but were superior courts of general jurisdiction. They 
exercise within their respective counties all the powers 
and jurisdiction of the courts of King's Bench and 
Common Pleas in England ; and although these courts 
are inferior to the supreme courts because appeals 
and writs of error lie from their decisions to the Su- 
preme Court, yet this circumstance does not consti- 
tute them inferior courts in the common law sense of 
the term. Courts not of record are denominated in- 
ferior courts because if their proceedings are ques- 
tioned in the superior courts, they must specially show 
that they kept within their jurisdiction. 2 

The act of the legislature establishing the state bank 
was in violation of the Constitution of the U. S. in so 
far as it authorized the bank to issue a paper currency 
to circulate as money in the respective states. This 
was held to be emitting " bills of credit," a power 
which is forbidden to the States by the Constitution of 

1 State Bank v. People, 4 Scam. 303. 

2 Beaubien v. Binckerhoff, 2 Scam. 274. 



29 

the United States, and a note given in consideration of 
such bills was held void and uncollectible. 1 

In an important case which was appealed to the 
Supreme Court of the United States it was decided 
that when a patent has been issued for a part of the 
public lands, a State has no power to declare any title 
less than a patent valid against a claim of the United 
States to the land or against a title held under a patent 
granted by the United States. Accordingly an act of 
the State legislature giving a right to the holder of 
possession of such lands in an action of ejectment does 
not apply to cases where the defendant holds a para- 
mount title by patent. 2 

That a statute of limitations does not run against 
the State unless it is expressly named in the statute 
was decided in two early cases. 3 

The present doctrine relating to repeal by implica- 
tion was announced by the court holding that this doc- 
trine is not favored by the law, and is never resorted 
to except where the repugnance or opposition is too 
clear and plain to be reconciled, the rule of law being 
that all laws in pari materia are to be construed to- 
gether so that no clause, sentence or word of any law 
should be superfluous or insignificant. 4 

In a case arising under the Constitution of 1818 but 
decided after the Constitution of 1848 went into effect, 
the legal status of the county was decided. The county 
was declared to be a public corporation subject com- 
pletely to the control of the legislature and the acts of 
the executive pursuant to the provisions of the Consti- 
tution. For that reason it was held proper for the 

1 Linn v. State Bank of Illinois, 1 Scam. 87. Mitchell v. State Bank 
of Illinois, 1 Scam. 526. 

2 McConnell v. Wilcox, 1 Scam. 344. 

3 Madison County v. Bartlett, 1 Scam. 70. State Bank v. Brown, 
1 Scam. 106. 

4 Bruce v. Schuyler, 4 Gil. 221. 



30 

legislature to release a penalty in a popular action 
brought for the benefit of a county. 1 

The jurisdiction of the Supreme Court was defined 
in a number of cases, in all of which the conclusions 
reached have been sustained by subsequent decisions 
except in cases where the Constitutional provision has 
been changed. The Supreme Court had no original 
jurisdiction to authorize the allowance of writs of 
habeas corpus. It had no authority except as an ap- 
pellate court in the review of legal proceedings to allow 
writs of habeas corpus, but a party could apply for 
such writ to one of the judges of the Supreme Court 
or to one of the judges of the Circuit Court and obtain 
the writ. (People v. Taylor, 1 Scam. 202). A writ of 
error was declared to be a writ of right which could not 
be denied except in capital cases and this writ was sus- 
tained in a case where the judgment was for less than 
twenty dollars. 2 

The doctrine of error coram vobis was announced to 
the effect that where an error in fact is committed in 
legal proceedings, the court in which the error is com- 
mitted may correct it by a writ of error coram vobis 
or on motion, and the jurisdiction of the Supreme 
Court in matters of error was confined to cases 
wherein the rules of law or principles of equity appear 
to have been erroneously adjudged and determined, al- 
though the court intimates that in a case where great 
injustice had been done and no other court could give 
relief that court would from necessity entertain juris- 
diction of a question involving errors in fact. 3 

The Supreme Court declined to take jurisdiction of 
an agreed case submitted to its consideration upon a 
question of law, no record of the Circuit Court being 
filed, but the question being submitted solely by agree- 
ment of counsel. 4 



1 Holliday v. The People, 5 Gil. 214. 

2 Brown v. Green, 1 Seam. 42. 

3 Beaubien v. Hamilton, 3 Seam. 213. 

4 Plumleigh v. White, 4 Gil. 388. 



31 

The provision in the Constitution of 1818 forbidding 
slavery was somewhat in the nature of a compromise 
upon that troublesome question. While slavery and 
involuntary servitude were forbidden except as a pun- 
ishment for crimes, yet a loop hole for controversy 
upon the subject was left by Section 1 of Article 6, 
which apparently permitted a person to be held under 
an indenture made under the conditions therein men- 
tioned. As a result of this provision, as well as the 
first section of Article 8, which protected citizens in 
their property, reputation and pursuit of happiness, 
a number of controversies arose requiring adjudica- 
tion by the Supreme Court. These cases are interest- 
ing now only from an historical standpoint and there- 
fore only a brief allusion to them will be made. All 
persons in this State were deemed to be free, but 
under Section 149 of the Criminal Code, the institution 
of slavery in some of the United States was recog- 
nized, and it was provided that none should harbor or 
conceal within the State a slave who owes service out 
of it, and to that extent Illinois had expressly recog- 
nized and enforced the law of comity which every State 
or government may or may not do, as it chooses. By 
the law of nations the citizens of one government have 
the right of passage through the territory of another 
peaceably, for business or pleasure, without the latter 
acquiring any right over their persons or property. 
This international right the courts of Illinois could not 
deny to citizens of other States without a violation of 
duty. Much less could these courts disregard the con- 
stitutional rights of a citizen of one of the States to 
all the rights, immunities and privileges of the several 
States. 

As a result it was held that a slave did not by the 
Constitution of Illinois become free by coming into the 
State for the mere purpose of passage through it, and 
such coming into the State is not an introduction of 
slavery therein. 1 

1 Willard v. The People, 4 Scam. 460. 



32 

A colored man could maintain an action of assumpsit 
for services rendered and thereby try the question of 
his right to freedom. The descendants of slaves of 
the old French settlers born since the adoption of the 
Ordinance of 1787 and before or since the Constitution 
of Illinois was adopted could not be held in slavery in 
this State. 1 

In the case of Phoebe v. Jay, in the first volume of 
reports it was held that the act of the Indiana terri- 
torial legislature of September, 1807, continued by the 
territory of Illinois respecting the introduction of 
negroes and mulattoes into the territory was void as 
being repugnant to the 6th article of the ordinances 
of 1787, but that indentures executed under that law 
were made valid by the third section of the 6th article 
of the Constitution of 1818. 

In this particular case a contract of service entered 
into in pursuance of the act of September, 1807, was 
not terminated by the death of the master, but passed 
to his legatees, executors or administrators. The ad- 
ministrator had no power to compel the servant to 
attend to the ordinary business of the administrator, 
but the latter had the custody of the servant for safe 
keeping until his time of service could be sold. 2 

The Constitution of 1818 guaranteed a speedy public 
trial by an impartial jury. The closing of the doors 
of a court room to prevent confusion arising from 
noise and disturbance when ingress and egress are 
not prevented, or for a temporary purpose where 
existing circumstances eminently require it to be done, 
but not for the purpose of excluding any one connected 
with the trial, does not render the trial private. 3 

The Constitution having declared that no person 
shall for the same offense be twice put in jeopardy of 

1 Jarrott v. Jarrott, 2 Gil. 1. Kinney v. Cook, 3 Seam. 232. 

2 Phoebe v. Jay, 1 HI. 268. 

3 Stone v. People, 2 Scam. 326. 



33 

life or limb, it was held that the State cannot prosecute 
a writ of error in a criminal case. 1 

The legislature had the power by its own act to 
release a penalty accruing to a county after verdict 
but before judgment. Such an act was not unconsti- 
tutional, it being neither an ex post facto law nor a law 
impairing the obligation of contracts. Counties are 
public corporations and can be changed, modified, en- 
larged, restrained or repealed to suit the ever varying 
exigencies of the State, being completely under legis- 
lative control. 2 

The legislature had an undoubted right to pass an 
act extending the time of payment to a collector of 
taxes, and the action thus taken was binding on the 
State. 3 

Under the provision of the Ordinance of July 13, 
1787, ceding the Northwestern territory to the United 
States the inhabitants of that territory became entitled 
to the benefit of judicial proceedings according to the 
course of the common law as it was then understood 
and expounded by the courts of this country. 4 

The foregoing citations from some of the important 
decisions of the court rendered while the Constitution 
of 1818 was in force serve to show the trend of judicial 
action at that early date. They also indicate that the 
special legislation which was permissible under the 
Constitution of 1818 was the basis of much of the liti- 
gation of that period. 

1 People v. Koyal, 1 Scam. 557. 

2 Coles v. Madison County, 1 111. 154. Eankin v. Beaird, 1 111. 163. 

3 Davis v. People, 1 Gil. 409. 

4 Penny v. Little, 3 Scam. 301. 



CHAPTEE IV. 

THE CONSTITUTION OF 1848. 

The Constitution of 1818 from the outset was unsat- 
isfactory to almost all classes of citizens. Accordingly 
an attempt was made to call a constitutional conven- 
tion in 1824, but the proposition failed on account of 
the slavery issue, involving the possibility that Illinois 
might become a slave state. 

A similar proposition was submitted to the people 
in 1842 and was defeated by only a small majority. 
The attempt was made again in 1846 and the propo- 
sition was then carried by a vote of more than two to 
one. The constitutional convention consisting of 162 
members assembled at Springfield on June 7, 1847, and 
remained in session until August 31, 1847, at which 
time its work was completed. 

Important Changes in the Organic Law. — The con- 
stitutional convention of 1847 made a radical and thor- 
ough revision of the organic law of the State. The 
prevailing issues between the two political parties at 
that period related to the definition and limitation of 
governmental powers and the regulation of the elective 
franchise; and these topics were the subject of heated 
discussions in the convention, in which offensive per- 
sonal remarks were exchanged in many instances, and 
in one notable case the feelings of the debaters were 
so aroused that they proposed to settle their differ- 
ences by a personal combat. This sanguinary conclu- 
sion was prevented by the intervention of the police. 1 

Under the Constitution of 1848 all state officers in- 
cluding judges of the supreme court were made elect- 
ive. The power of the legislature was restricted in 

1 This refers to the debate between Messrs. Campbell and Pratt. 

(34) 



35 

numerous particulars. Divorces could be granted for 
such causes only as might be specified by the general 
law. Lotteries were forbidden. The revival of the 
charter of the state bank was prohibited. The State 
was prohibited from contracting any indebtedness in 
excess of fifty thousand dollars. Extra compensation 
could not be granted to any public officer or agent for 
any public service, after the service had been rendered, 
or to any contractor after the execution of the con- 
tract. The State was forbidden to give its credit in 
aid of any "individual association or corporation. ' ' 
The council of revision was abolished and a qualified 
veto power was given to the governor. The exercise 
of the right of suffrage was limited to white male citi- 
zens, thereby disfranchising unnaturalized foreigners. 
For the purpose of preventing extravagances in state 
expenses, the Constitution of 1848 fixed the salaries of 
all state officers including supreme and circuit court 
judges and members of the general assembly at very 
low figures. The salary of the governor was fixed at 
$1,500, supreme court judges $1,200, circuit court 
judges $1,000, state auditor $1,000, treasurer and sec- 
retary of state $800 each. Members of the general 
assembly were allowed $2 per day for the first forty- 
two days attendance and $1 per day for each day's at- 
tendance thereafter, thus practically limiting the 
length of the session to forty- two days. 

Particular attention should be given to Article XIV 
which prohibited free persons of color from immigrat- 
ing to and settling in this State and prevented owners 
of slaves from bringing them into this State for the 
purpose of setting them free ; and to Article XV which 
provided for a two mill tax to be applied in payment 
of state indebtedness, other than school and canal in- 
debtedness. The latter was especially important as 
indicating an intention to pay the enormous debt which 
had been created in connection with internal improve- 
ments and not to repudiate the same as some advo- 



36 

cated. Both of these articles were adopted by sub- 
stantial majorities. 

Another important feature of the Constitution of 
1848 was the provision which directed the general as- 
sembly to provide by a general law for township or- 
ganization under which any county might organize 
whenever a majority of the voters of such county at 
any general election should so determine, and further, 
that whenever any county should adopt a township or- 
ganization, the power of the County Court over the 
fiscal affairs of the county should cease. In this way 
the controversy between the two rival theories of local 
government was settled and the sectional feeling upon 
the subject was allayed. The foregoing were the more 
important changes in the organic law proposed by the 
constitution. The general framework of the govern- 
ment remained the same as under the Constitution of 
1818, although many new provisions were added which 
had been rendered necessary on account of the changed 
conditions existing in the State due to its great in- 
crease in wealth and population. 

The constitution was submitted to a vote of the 
people at an election held on March 6, 1848, and was 
adopted by a vote of 59,887 to 15,859. It went into 
effect on April 1, 1848. 

The Constitutional Convention of 1862. — On January 
31, 1861, an act was passed by the legislature providing 
for the calling of a convention to amend the Constitu- 
tion. The election of delegates was held in November 
of that year, at a time when the people were absorbed 
with matters pertaining to the civil war so that but 
little interest was taken in the selection of the dele- 
gates. 

The convention met at Springfield on January 17, 
1862. Its proceedings indicate that the members of 
the convention must have had strange views as to the 
nature of their duties. They refused to take the oath 
prescribed by the law under which the convention had 
been called, dictated to the governor and other state 



37 

officers as to the performance of their official duties, 
assumed the general supervision of the Illinois troops 
in the field and asserted generally their supremacy 
over the Constitution. This convention even at- 
tempted to ratify a proposed amendment to the Fed- 
eral constitution, which congress had submitted to the 
state legislature. These and other legislative antics 
finally led to a breach between the governor and the 
convention, the former asserting that "he did not ac- 
knowledge the right of the convention to instruct him 
in the performance of his duty." 

A draft of a proposed new constitution was adopted 
by this convention on March 22, 1862, and was sub- 
mitted to a vote of the people on June 17, 1862 and was 
then rejected by a large majority. 

Defects of the Constitution of 1848. — The constitu- 
tion of 1848 was adopted for the avowed purpose of 
correcting the mistakes which had been made under 
the constitution of 1818, the most prominent of which 
are generally ascribed to the absence of provisions re- 
stricting the power of the legislature. As a result of 
the system of internal improvements which had been 
adopted under the first constitution an enormous state 
debt had been imposed upon the people. This burden 
of a debt and the evils attendant upon it seriously 
hindered the growth and development of the State, 
checked the commercial progress of its citizens, and 
depreciated property values. 

For these reasons, it was natural that the framers 
of the constitution of 1848 had in view the economical 
administration of the government, the liquidation of 
the state debt, the prevention of further abuses of the 
public credit and the curtailment of the legislative 
power, as the chief objects to be attained under the 
new constitution. Notwithstanding the apparent evil 
effects of an unrestrained exercise of the legislative 
power under the former Constitution, one of the most 
serious defects of the new organic law was due to the 



38 

failure to impose specific restrictions upon the law 
making branch, of the government. 

Something was accomplished in this direction by 
practically limiting the length of the legislative session 
to forty-two days, by prohibiting special legislation on 
the subject of divorces, by forbidding extra compensa- 
tion to public officers, and by requiring a vote of the 
people to ratify the creation of a state bank. 

The Constitution also provided that the credit of the 
State should not be given in aid of any individual, as- 
sociation or corporation and prohibited the creation of 
corporations by special act, except in those cases 
" where in the judgment of the general assembly, the 
objects of the corporation cannot be attained under 
general law." A similarly loose provision is found in 
the requirement that ' ' every bill shall be read on three 
different days in each house, unless, in case of urgency, 
three-fourths of the house where such bill is so de- 
pending shall deem it expedient to dispense with this 
rule." Even a hasty review of the legislation of that 
period shows that exceptional cases under the first 
quoted section and cases of an urgent character under 
the latter were very numerous. 

The public laws passed by the twenty-fifth general 
assembly are printed in a small volume containing 
about 200 pages while the private laws enacted by that 
body are contained in three volumes having an aggre- 
gate of 2,500 pages. Notwithstanding the constitu- 
tional prohibition of special legislation concerning cor- 
porations, a large percentage of these private laws re- 
late to that subject. 

The twenty-sixth general assembly which was the 
last under the constitution of 1848, convened on Jan- 
uary 4, 1869. At that time a call for a convention to 
amend the Constitution had been issued and conse- 
quently the promoters of special legislation were par- 
ticularly active. The record of the preceding assem- 
bly was eclipsed by the passage of 1700 private acts 
filling four large volumes. These special acts included 



39 

a great variety of subjects such as the incorporation of 
private manufacturing companies, water power com- 
panies, hotels, banking establishments, land companies 
and benevolent loan associations. Under such circum- 
stances public necessity certainly demanded greater 
restrictions upon the legislative power than those con- 
tained in the Constitution of 1848. 

Attention has already been called to the meagre 
salaries allowed to state officers by the constitution of 
1848. As a measure of economy this policy was a con- 
spicuous failure and led to evasions reflecting little 
credit upon the public officers of that time. The gov- 
ernor's salary of $1,500 was augmented by an annual 
appropriation of $4,500 "for fuel and lights for the 
executive mansion, to defray the expenses of caring 
for the same and keeping the grounds attached thereto 
in repair.' ' The constitution provided that members 
of the general assembly should receive as compensation 
for their services ■ ' the sum of $2 per day for the first 
forty-two days' attendance and $1 per day for each 
day's attendance thereafter and ten cents for each 
necessary mail's travel" and "no more," but this re- 
striction did not prevent the members of the 26th gen- 
eral assembly from receiving a per diem of seven 
dollars for the whole seventy-four days of the session 
or from voting themselves an allowance of $300 for 
extra expenses. The scandalous extent to which the 
provisions of the constitution were evaded is shown by 
the fact that the legislative and executive expenses of 
the government increased from the sum of $225,121 for 
the years 1858-1860 to the sum of $840,360 for the 
years 1868-1870. 

It thus seems apparent that the Constitution of 1848 
was no longer an effective instrument: that the limita- 
tions which it imposed upon the different branches of 
the government had fallen into disuse ; that legislation 
under it had become extravagant and improvident and 
that the necessity for a change was urgent. 

Judicial Decisions. — The Constitution of 1848 was 



40 

the fundamental law of the State for practically twen- 
ty-two years. During that period the volume of litiga- 
tion in the State steadily increased ; and the decisions 
of the Supreme Court are contained in volumes 10 to 
54, although troublesome questions arising under this 
constitution and the special legislation enacted under 
it continued to occupy the attention of the court for 
some years after it was superseded by the Constitution 
of 1870. It will be possible to refer to only a few of 
the more important of these decisions without exceed- 
ing the limits of a work of this kind. 

An application being filed for an alternative writ of 
mandamus to be directed to the Governor, command- 
ing him to issue certain interest bonds which the relator 
claimed under an act to fund the arrears of interest on 
the public debt, the distinct question was presented 
whether the court would assume to itself jurisdiction 
to control the executive department of the government. 
This delicate and fundamentally important question 
was carefully considered by the court and in discuss- 
ing it the court said : 

"Neither of the three great departments into which 
our government is by the constitution, divided, is sub- 
ordinate to, or may exercise any control over, another, 
except as is provided in the constitution. This normal 
condition is that of equality each acting within its own 
sphere, independent of either of the others, so long as 
its action does not exceed the powers confided to it, 
unless particular exceptions are made to this general 
rule by the constitution itself. The harmonious work- 
ing of these several departments, so as to accomplish 
one united and complete government, requires, as the 
constitution contemplates, that each department should, 
to a certain extent, control or restrain the others. For 
instance, the legislative department makes the law by 
which both the other departments are controlled and 
bound. The executive is authorized to exercise a con- 
trol over both the others in certain cases, which is 
sometimes absolute and sometimes qualified. He has 
a qualified veto power upon legislative action, and has 
the absolute right to convene the legislature when he 



41 

chooses, and, in a certain event, may adjourn their ses- 
sions ; and should the legislature pass a law, in viola- 
tion of the constitution, to borrow money, and require 
him to issue bonds therefor, he might refuse to issue 
the bonds or to execute the law. He may practically 
annul the judgments of the judiciary, in certain cases, 
by the exercise of the pardoning power. To the judi- 
ciary is confided the power and the duty of interpret- 
ing the laws and the constitution whenever they are 
judicially presented for consideration. Hence it be- 
comes our duty to determine what is the meaning of 
the laws passed by the legislature, and, also, whether 
those laws are such as the legislature was authorized 
by the constitution to pass. So, also, of the acts of 
the executive ; we are bound to determine whether such 
acts are authorized by the laws and the constitution, 
whenever they are brought before us judicially, but not 
otherwise. And hence the judicial department of the 
government exercises a certain controlling, or rather re- 
straining, power, over both the other departments of 
the government. Notwithstanding all this, when care- 
fully considered, it will be seen that each department, 
within its proper constitutional sphere, acts independ- 
ently of both the others, and restraint is only placed 
upon it when such sphere is actually transcended, or 
express authority is given by the constitution, for re- 
straint or control, by another department. As from 
necessity and the very nature of all government, there 
must be an ultimatum somewhere, whose duty it is to 
determine whether such sphere has been passed or 
not ; that duty, in most cases, falls on the judicial de- 
partment, from the fact that in this department is re- 
posed the responsibility of enforcing or giving effect 
to the acts of the other departments. But it is only 
when thus called upon, in some form known to the law, 
to give effect to such acts of the other departments, 
that the judiciary can determine whether such acts 
were done in the exercise of a constitutional power. 
In no other way, nor in any other case, can this de- 
partment construe the constitution for, or exercise any 
control over, any other department. Where final 
action upon any subject is confided to either of the 
other departments, there the responsibility must rest, 



42 

of conforming such action to the law and the constitu- 
tion/' 1 

The ancient office of coroner was neglected by the 
framers of the Constitution of 1848 who omitted to 
create that office in express terms and therefore it was 
contended that there had been no such officer since the 
adoption of the new constitution. The court held that 
the argument was specious, but unsound. The first 
section of the schedule of the constitution provided 
* ' That all laws in force at the adoption of the constitu- 
tion not inconsistent herewith shall continue and be as 
valid as if this constitution had not been adopted. ' ' It 
also expressly referred to the office of coroner in the 
14th section of the schedule. By reason of these pro- 
visions the court held that it was the affirmative will 
and positive intent of the convention in framing the 
Constitution and of the people in adopting it that the 
office of coroner should continue and exist, and that all 
of the coroners then in office under the Constitution of 
1818 should continue after the adoption of the new 
Constitution. 2 

Municipal corporations are created solely for the 
public good and to that end the corporate authorities 
will be held to a strict exercise of their franchises. 
They cannot confer pecuniary benefits or grant monop- 
olies to any portion of their communities or to in- 
dividual members thereof, but must exercise their pow- 
ers for purely legitimate purposes. 3 

An instance of the special legislation prevalent under 
the Constitution of 1848 was before the court in con- 
struing an act authorizing a certain administrator to 
sell land to pay debts. The act was declared unconsti- 
tutional because it did not provide for any judicial 
ascertainment that debts existed. The legislature has 
no power to assume that debts are due and payable 
and on that assumption to authorize an administrator 



1 People v. Bissell, 19 111. 231. 

2 Wood v. Blanchard, 19 111. 37. 

3 City of Chicago v. Bumpff, 45 111. 91. 



43 

to sell land belonging to the heirs and apply the pro- 
ceeds to the payment of debts of the estate, without 
any judicial inquiry as to the existence of such debts 
before paying them. The power to determine the 
existence of debts is judicial not legislative. 1 

A case arose under a bill to incorporate the "Wabash 
Eailway Company, alleged to have been passed at the 
January session 1863, involving numerous questions 
arising under Sections 12 and 13 of Article 2 of the 
Constitution, the most of which relate principally to 
legislative irregularities in connection with the passage 
of the bill. The case is too long to permit the inser- 
tion here of even an outline of the matters discussed 
by the court, but is valuable as a precedent upon the 
question as to whether or not constitutional require- 
ments have been fulfilled in the passage of a bill, and 
has been cited extensively since the adoption of the 
Constitution of 1870. 2 

Some similar questions were involved in a case aris- 
ing under the Constitution of 1848, but decided in 1873. 
This was a suit in equity to enjoin the collection of a 
tax levied for the payment of interest upon certain 
bonds issued by the Town of Ottawa in aid of a rail- 
way, the principal contention on the part of the com- 
plainant being that the act of the General Assembly 
under which the bonds were issued was not enacted in 
conformity with the requirements of the Constitution. 
A bill for the act was passed by the House of Repre- 
sentatives, but in the Senate was not read on three 
different days and was not passed by a vote of the 
ayes and noes as required by the Constitution of 1848. 
Under these circumstances it was held that the bill 
never became a law and was a nullity, although it was 
reported back to the House as having passed the Sen- 
ate and was enrolled and approved by the Governor. 
The bonds of the municipal corporation having been 
issued without any power or authority in law, were 

1 Bozier v. Fagan, 46 111. 404. 

2 People v. Hatch, 33 111. 9. 



44 

absolutely void, regardless of the fact that they had 
passed into the hands of innocent holders. 1 

An instance of legislative carelessness is shown in 
a case affecting the validity of the regular appropria- 
tion bill for the ordinary and contingent expenses of 
the government which was pretended to have been 
passed on February 14, 1863. In this case it was 
held that bills signed by the speakers of both Houses 
and approved by the Governor will be regarded as 
prima facie binding until that presumption is abutted 
by the journals of the two Houses ; but when it appears 
from the journals that the constitutional requirements 
are wanting the provisions of the bill will not be en- 
forced. 2 

A proceeding by information in the nature of a quo 
warranto was instituted to test the constitutionality of 
an act of the legislature providing for the erection of 
a new state house upon the ground that the commis- 
sioners appointed under said act were officers within 
the meaning of the Constitution and that the mode of 
their appointment was in conflict with Section 12, 
Article 4 of the Constitution. This case afforded the 
court an opportunity to draw the distinction between 
an office and an employment and the court finds that 
the term "such officers " as used in said section applies 
to those persons who have some portion of the func- 
tions of government committed to their charge, and 
that the commissioners in the case at bar did not 
belong to that class. The court also directs attention 
to one of the defects of the Constitution of 1818 in the 
following language : 

"Under the first Constitution of this State, nearly 
all the important offices of government were filled by 
an election on joint ballot of the two houses, — that is 
by the action of the general assembly alone. The evil 
produced was, that the legislature became the great 
appointing power, giving rise to injurious combina- 

1 People v. Starne, 35 111. 121. 

2 Eyan v. Lynch, 68 111. 160. 



45 

tions affecting the purity of legislation. The passage 
of a law, or its defeat, might be made to depend on the 
election of a particular individual to a particular 
office. When the convention was called by which the 
present Constitution was framed, one of the great 
objects to be effected by the call was to deprive the 
legislature of the power to elect or appoint such officers 
as had been appointed by that body under the old Con- 
stitution, such as judges of the Supreme, Circuit and 
inferior courts, the auditor and treasurer of State and 
many others, whose functions were directly connected 
with some one or more of the departments of govern- 
ment which the Constitution had established, and who 
were to aid in carrying on the government. m 

The provision of the Constitution to the effect that 
the corporate authorities of counties and other munici- 
pal corporations may be vested with power to assess 
and collect taxes for their corporate purposes not only 
limits local or corporate taxation to local or corporate 
purposes, but was also intended as a limitation upon 
the power of the legislature to grant the right of taxa- 
tion to any persons other than the corporate or local 
authorities of the municipality to be taxed. 

' ' The power of taxation is, of all the powers of gov- 
ernment, the one most liable to abuse, even when exer- 
cised by the direct representatives of the people, and 
if committed to persons who may exercise lit over 
others without reference to their consent, the certainty 
of its abuse would be simply a question of time. No 
person or class of persons can be safely entrusted with 
irresponsible power over the property of others, and 
such a power is essentially despotic in its nature, and 
violative of all just principles of government. ' ' 2 

It was nqt competent for the General Assembly 
under the Constitution of 1848 to exempt from taxa- 
tion property owned by educational, religious or 
charitable corporations which was not used directly in 
aid of the corporate purposes, but was held for profit 
merely. The claim was made that under the charter 

1 Bunne v. People, 45 HI. 401. 

2 Harvard et al. v. St. Clair Drain. Co., 51 111. 135. 



46 

of Northwestern University all of its property was 
exempt from taxation, and it was contended by the 
taxing authorities that it was beyond the power of 
the legislature under Section 3 of Article 9 of the Con- 
stitution to grant so broad an exemption. The court 
sustained this contention, holding that the corporation 
being private, the general tax payer was relieved of no 
obligation in consequence of the exemption which he 
would otherwise have to discharge by the payment of 
taxes, and in proportion as the University became the 
owner of property which was thereby withdrawn from 
taxation, the burden of the general tax payer was in- 
creased. 1 

A review of the judicial decisions in which the Con- 
sitution of 1848 is involved shows that the greater part 
of the litigation of that period was due to the special 
legislation enacted under that Constitution relating 
very largely to the subject of corporations public and 
private. Many of the results of this special legisla- 
tion have disappeared long ago so that the decisions 
of the courts with reference to the subject matter are 
no longer of general interest to the student or prac- 
titioner. While the foregoing review of these cases is 
by no means complete, yet it is believed to be sufficient 
for the purpose of showing the general trend of litiga- 
tion during the period in question. 

The Adoption of the Constitution of 1870.— At the 
session of the legislature in 1867, a resolution was 
adopted directing the submission to a vote of the 
people of the proposition to call a convention to frame 
a new constitution. This proposition was submitted 
and adopted at the next general election. The conven- 
tion met at Springfield on December 13, 1869, and com- 
pleted its work on May 13, 1870, by the adoption of the 
new constitution. The document was ratified by a 
vote of the people on July 2, 1870, and went into effect 
on August 8, 1870. As this constitution with its 
amendments is the present organic law of the State, 

1 Northwestern University v. People, 80 111. 333. 



47 



its provisions and the construction placed upon them 
by the courts will be considered somewhat in detail in 
the remaining chapters. 



CHAPTER V. 

GENERAL OUTLINE OF THE GOVERNMENT. 
UNDER THE CONSTITUTION OF 1870. 

The Legislative Department. — The legislative power 
of the State is vested in a general assembly, consisting 
of a senate and house of representatives, both of which 
are elected by the people. A senator must be at least 
twenty-five years of age, but a person may be elected 
a representative at the age of twenty-one. A candi- 
date for either of these positions must be a citizen of 
the United States and must have been for five years 
a resident of this State and for two years preceding 
his election a resident of the district from which he is 
chosen. No person holding any lucrative office under 
the United States or this State can be either senator 
or representative. No person convicted of bribery, 
perjury or other infamous crime, or any officer who 
has failed to account for public money entrusted to his 
care, can fill these positions or any other office in this 
State. Members of the general assembly before enter- 
ing upon their official duties are required to take a 
solemn oath of office, and any member who violates 
this oath must forfeit his office and be thereafter dis- 
qualified from holding any office of trust or profit in 
this State. 

Senators and Representatives. — To determine the 
number of senators and representatives, the constitu- 
tion provides that the State shall be divided into fifty- 
one senatorial districts, each of which shall elect one 
senator, whose term of office shall be four years. The 
senators elected in the year 1872 in districts having 
odd numbers held their offices for two years only, while 
those elected from districts having even numbers held 
their offices for four years, and elections of senators 

(48) 



49 

are held every two years, in either the odd or even 
numbered districts. By this device the senate is never 
composed entirely of new and inexperienced members. 

Minority Representation. — The house of representa- 
tives consists of three times as many members as the 
senate. Three members are elected from each sena- 
torial district for a term of two years. In elections 
of representatives each voter may cast as many votes 
for any one candidate as there are representatives to 
be elected, or he may distribute his vote, or equal parts 
thereof, among the candidates as he shall see fit. 

Legislative Sessions. — The regular sessions of the 
general assembly must commence at 12 o'clock noon on 
the Wednesday next after the first Monday in January, 
in the year next ensuing the election of members there- 
of ; that is to say, an election of senators and represent- 
atives takes place every second year in the month of 
November and the regular session of the general as- 
sembly commences in the following January. The 
constitution forbids the holding of sessions of the gen- 
eral assembly at any other time, except in cases where 
a special session is convened by the governor, who has 
the right to exercise that power on extraordinary occa- 
sions. 

The presiding officer of the house of representatives, 
called the speaker, is elected by the members of the 
house, but the lieutenant-governor, who is elected by 
the people, presides over the sessions of the senate. 

Special Legislation Forbidden.— It was natural that 
the framers of the constitution should seek to guard 
against the evil of special legislation which had pre- 
dominated under the former instrument. All special 
legislation is prohibited in cases where a general law 
can be made applicable. Besides this general prohibi- 
tion some twenty-three subjects are specifically men- 
tioned upon which special legislation is forbidden. 

Impeachment. — The house of representatives has 
the sole power of impeachment and all impeachments 
must be tried by the senate. When the governor of 



50 

the State is tried, the chief justice presides. Two- 
thirds of the senators must concur in order to secure a 
conviction. In case of conviction the punishment is 
removal from office and disqualification from holding 
any office of honor, profit or trust under the govern- 
ment of this State. 

The Executive Department. — In comparing the pro- 
visions of the Constitution of Illinois relating to the 
executive department with those of the Federal Con- 
stitution an important difference should be noted. 
Under the Constitution of the United States, the execu- 
tive power is vested in the President alone, and all 
other officers having executive duties to perform hold 
their respective positions by appointment, while the 
constitution of Illinois provides that the executive de- 
partment shall consist of a number of officers — viz.: 
Governor, Lieutenant-Governor, Secretary of State, 
Auditor of Public Accounts, Treasurer, Superintend- 
ent of Public Instruction and Attorney General, all of 
whom are elected for a term of four years, except the 
Treasurer, who serves for two years only and is not 
eligible for election during the succeeding two years. 

It is, therefore, apparent that the governor is only 
a part of the executive department, and that there are 
other executive officers deriving their powers from the 
same source as the governor — that is, from the consti- 
tution. " Indeed, it may be doubted whether the gov- 
ernor and other principal officers of a state govern- 
ment can, even when taken together, be correctly de- 
scribed as "the executive,' ' since the actual execution 
of the laws does not rest with them, but with the local 
officers chosen by the towns and counties, and bound 
to the central authorities of the State by no real bonds 
of responsibility whatever." 1 

Governor. — A person to be eligible for the office of 
governor or lieutenant-governor must be at least 
thirty years of age and must have been for five years 

1 Woodrow Wilson, The State. 



51 

next preceding his election a citizen of the United 
States and of the State of Illinois. 

The powers and duties of the governor, as estab- 
lished by the Constitution of Illinois, may be general- 
ized under the following heads : 

1. Certain Duties and Powers with Reference to 
the Legislature. — It is his duty, at the beginning of 
each session and at the close of his term of office, to 
give to the general assembly, by message, information 
of the condition of the State and to recommend such 
measures as he deems expedient. He has the power 
of convening the general assembly in special sessions 
upon extraordinary occasions, and in case of disagree- 
ment between the two houses to fix the time to which 
the assembly shall adjourn. 

2. The Power of Appointment and Removal. — The 
governor has the power of nominating and, by and 
with the advice and consent of the senate, appointing 
all officers whose appointment or election is not other- 
wise provided for. In case a vacancy occurs in any of 
the executive offices above mentioned, the governor has 
the right to fill the vacancy by appointment, until an 
election can be held. He also has the power of remov- 
ing all appointive officers for malfeasance in office. 

3. Pardoning Power. — He has the power of grant- 
ing reprieves, commutations and pardons after convic- 
tion, for all offenses, subject to such regulations as 
may be provided by law. 

4. As Commander-in-Chief. — He is commander-in- 
chief of the military and naval forces of the State, 
except when they shall be called into the service of the 
United States, and may call out these forces to aid in 
executing the laws, suppressing insurrection and re- 
pelling invasion. 

5. The Poiver of Veto. — Every bill passed by the 
legislature must be submitted to the governor before it 
becomes a law. If he approves the enactment, he 
signs it, and thereupon it becomes a law; if he does 
not approve, he returns the bill to the house from 



52 

which it originated, together with his objections. This 
act of the governor is termed vetoing the bill. If the 
bill again passes both houses of the general assembly 
by a two-thirds vote in each house, it becomes a law, 
notwithstanding the governor's veto. Any bill not re- 
turned by the governor within ten days after it has 
been submitted to him becomes a law in like manner as 
if he had signed it. In case he is prevented from re- 
turning the bill by the adjournment of the legislature, 
within ten days after the bill has been presented to 
him, he may exercise his right of veto by filing the 
bill, with his objections to it, in the office of the secre- 
tary of state. 

In case of death, conviction on impeachment, failure 
to qualify, resignation, absence from the State, or 
other disability of the governor, the powers, duties 
and emoluments of the office for the residue of the 
term, or until the disability is removed, devolve upon 
the lieutenant-governor. 

Other State Officers. — Lieutenant-Governor. — The 
lieutenant-governor is president of the senate, but he 
has the right to vote only when the senate is equally 
divided upon a question. The senate is required to 
choose a president pro tempore to preside in case of 
the absence or impeachment of the lieutenant-gov- 
ernor, or when he holds the office of governor. 

If there be no lieutenant-governor, or if the lieuten- 
ant-governor becomes incapable of performing the 
duties of the office, the president of the senate acts as 
governor until the vacancy is filled or the disability 
removed; and if the president of the senate becomes 
incapable of performing the duties of the governor, 
the same devolve upon the speaker of the house of 
representatives. 

Secretary of State. — The secretary of state is the 
official custodian of the books, papers, records and 
great seal of the State of Illinois. The title of his 
office more accurately describes his duties than is the 
case with the Secretary of State of the United States, 



53 

who is a minister of foreign affairs. The secretary of 
state of the State of Illinois performs the duties which 
are usually imposed upon the secretary of any great 
establishment, and acts in the same capacity for the 
sovereign State of Illinois as he would if secretary of a 
large private corporation. 

All public acts, laws and resolutions passed by the 
general assembly must be deposited in his office, and he 
is charged with the safekeeping of all documents de- 
posited with him. It is his duty to keep a record of 
the official acts of the governor ; to countersign and to 
affix the seal of the State to all commissions issued by 
the governor ; to furnish, upon request and payment of 
the lawful fees therefor, a copy of any of the records 
in his office ; to take charge of and care for the grounds 
and buildings situated in the city of Springfield be- 
longing to or occupied by the State, as well as all of 
its personal property ; to furnish to the public printer 
the necessary information for printing public records ; 
and to supervise the distribution of the laws and jour- 
nals of the general assembly. 

Auditor. — The auditor of Public Accounts is the 
official bookkeeper of the State of Illinois. It is his 
duty to keep the accounts of the State with any other 
State or Territory and with the United States, with all 
public officers, corporations and individuals having 
dealings with the State, and to audit all accounts of 
public officers who are paid out of the State treasury, 
of the members of the legislature and all persons 
authorized to receive moneys from the State treasury. 
He also has many other duties to perform under 
various statutes of the State, such as the examination 
of the books and accounts of building and loan asso- 
ciations and of banks incorporated under the laws of 
the State. 

Treasurer. — The Treasurer, as is indicated by the 
title of his office, must receive and keep moneys belong- 
ing to the State of Illinois. This is an office of great 
pecuniary responsibility, and, therefore, to secure the 



54 

faithful discharge of his duties, the Treasurer is 
obliged to give a bond to the people of the State in the 
sum of $500,000, and is also required to furnish addi- 
tional bonds whenever the governor shall deem it nec- 
essary. 

The treasurer must receive all public moneys of the 
State and safely keep the same. Any person paying 
money into the State treasury must first obtain from 
the auditor an order directing the treasurer to re- 
ceive the money, and if the treasurer should receive 
and receipt for any money without such an order being 
presented to him, he would be liable to removal from 
office. He can pay money out of the treasury only 
upon the warrant of the auditor, and he is required to 
keep accurate accounts of all moneys received and 
paid out by him and to report the same each month to 
the auditor. 

Attorney-General. — The Attorney-General is the 
chief law officer of the State government. It is his 
duty, as prosecuting officer, to represent the people of 
the State in all cases in which they are interested, and 
also to protect State officers in suits brought against 
them in their official capacity. He is the legal adviser 
of the governor and other State officers, and is re- 
quired, when requested by them, to give written 
opinions upon all legal and constitutional questions 
relating to their duties, and to prepare all documents 
incidental to the business of the State. He is the legal 
adviser of both branches of the general assembly, and 
it is his duty to enforce the proper application of 
the funds appropriated for the support of the public 
institutions, such as schools and asylums, and to prose- 
cute all persons who may be guilty of any breach of 
trust in the management of such funds. 

The Judicial Department. — The constitution of 1870 
made greater changes in the structure of the judicial 
department as it existed under the constitution of 1848 
than in any of the other departments of the State gov- 
ernment. Under the constitution of 1870 the judicial 



55 

powers of the State are vested in one Supreme Court, 
circuit courts, county courts, justices of the peace, 
police magistrates, and such other courts as may be 
created by law in and for cities and incorporated 
towns. 

Supreme Court. — The Supreme Court consists of 
seven judges, who have original jurisdiction in cases 
relating to the revenue, mandamus and habeas corpus, 
and appellate jurisdiction in all other cases. One of 
the judges is the Chief Justice and presides at the ses- 
sions of the court. The others are called Justices, 
and serve in turn as Chief Justice. A person, to be 
elected to the office of judge of the Supreme Court, must 
be at least thirty years of age and a citizen of the 
United States, and must have resided in this State five 
years next preceding his election, and be a resident of 
the district from which he is elected. For the election 
of judges of the Supreme Court the State is divided into 
seven districts, each of which is composed of a number 
of counties. The terms of the Supreme Court are held 
in the city of Springfield, on the first Tuesday in Octo- 
ber, December, February, April and June in each year. 

Appellate Courts. — The constitution provides that 
after the year 1874 inferior appellate courts may be 
created in districts formed for that purpose, to which 
appeals may be taken from the inferior courts, and 
from which appeals lie to the Supreme Court in certain 
cases. Under this authority the legislature, on June 
2, 1877, enacted a law establishing four appellate 
courts in this State and divided the State into four dis- 
tricts, in each of which an appellate court is held. The 
judges of this court are selected by the Supreme Court 
from the judges of the circuit courts of the several dis- 
tricts, and in the first district, which is composed of 
Cook County alone, the appellate court judges are 
selected from both the circuit and superior courts of 
that county. 

The appellate courts exercise appellate jurisdiction 
only, and appeals to this court are taken from the lower 



56 

courts in all cases except criminal cases, and cases in- 
volving a franchise or a free-hold or the validity of a 
statute. The decision of the Appellate Court is final 
in all cases where less than the sum of $1,000 is in- 
volved, but an appeal may be taken from the decision 
of the Appellate Court to the Supreme Court in all cases 
where a greater amount is involved, and in cases in- 
volving a less sum wherein there are legal questions 
of such importance that the judges of the Appellate 
Court certify the same to the Supreme Court in order 
to obtain its opinion thereon. 

Circuit Courts. — Circuit courts have original juris- 
diction of all civil cases, and also have appellate juris- 
diction of cases arising before justices of the peace and 
before the Probate Court. The State, exclusive of 
Cook County and other counties having a population 
of 100,000 inhabitants, is divided into judicial circuits 
formed, as nearly as possible, of contiguous counties, 
but the population of any one circuit must not exceed 
100,000 inhabitants. No person can be elected to the 
office of judge of the Circuit Court unless he is at least 
twenty-five years of age, a citizen of the United States 
and a resident of this State for five years next preced- 
ing his election, and is a resident of the circuit in which 
he is elected. 

The County of Cook constitutes one judicial circuit, 
and at the time of the adoption of the constitution of 
1870 the Circuit Court of that county was composed of 
five judges, but their number has been increased from 
time to time, as the population has grown, so that at 
the present time there are fourteen judges of the Cir- 
cuit Court in that county. 

Superior Court of Cook County. — This court has the 
same jurisdiction as the Circuit Court. Its existence is 
due to the fact that prior to the adoption of the consti- 
tution of 1870, there existed in the City of Chicago a 
court known as the Superior Court of Chicago, and 
the Constitution provided that this court should be con- 
tinued and called the Superior Court of Cook County. 



57 

The number of judges in both the circuit and superior 
courts may be increased by the general assembly when- 
ever there is an addition of 50,000 inhabitants to the 
population of the county, by adding one judge to each 
of the courts. There are now twenty Superior Court 
judges. 

Criminal Court of Cook County. — The County of 
Cook also has a criminal court, in which are tried all 
cases of a criminal nature arising in that county. In 
all other counties, criminal cases are tried before the 
Circuit Court, but in the County of Cook, owing to the 
large volume of business, it has been deemed wise to 
create a separate court for the trial of criminal cases 
only. This court is called the Criminal Court of Cook 
County, and its terms are held by one or more of the 
judges of the Circuit or Superior Courts of Cook 
County as nearly as may be in alternation. A judge of 
the Circuit or Superior Court, when sitting in the 
Criminal Court, is styled a Judge of the Criminal 
Court of Cook County. 

County and Probate Courts. — In each county of the 
State there is a County Court, having one judge only, 
whose term of office is four years. County courts have 
jurisdiction in all proceedings for the collection of 
taxes and assessments, and in all insolvency matters, 
and such other jurisdiction as may be provided for by 
laws of the State. County courts also have jurisdic- 
tion in probate matters and the settlement of estates 
of deceased persons, appointment of guardians for 
minors and conservators for insane persons, except in 
those counties having probate courts. Probate courts 
are created by the legislature pursuant to the power 
given by the constitution which provides for the estab- 
lishment of such a court in any county having a popu- 
lation of over 50,000 inhabitants. 

County Government. — Each State of the Union ex- 
cept Louisiana 1 is divided into counties, varying in 
size and population; therefore county government is 
general throughout the United States. 

1 Louisiana is divided into parishes for purposes of local government. 



58 

The county is a subdivision and agency of the State, 
created for convenience in administering the affairs 
of the State government. It is an institution of 
ancient origin, having a history full of interest to stu- 
dents of civil affairs. The county in England is older 
than the Kingdom itself. It originated with the union 
of two or more clans into a tribe and their settlement 
in a fixed dwelling place, after which, in a compara- 
tively short time, they assumed the form of a mon- 
archy and the chief became known as a king. 

When the Anglo-Saxon tribes invaded England and 
settled in different parts of the island, they created a 
number of small kingdoms, independent of each other. 
Afterward, when the government became centralized 
and subject to one responsible head, these individual 
kingdoms continued their existence, and were known 
as counties. Thus the growth of the county in Eng- 
land has been essentially different from its develop- 
ment in the United States. In England the kingdom 
was created by a union of the counties, but in the 
United States the counties have been formed by a sub- 
division of the State. 

The legislature controls the division of the State 
into counties, all of which are created solely by legis- 
lative act. A county is endowed with certain func- 
tions, giving it the character of a corporation. It can 
sue in the courts and be sued ; it can act only through 
its duly qualified officers; it can purchase such real 
estate as is needed for the uses of the county; it can 
sell or lease the same when no longer needed, and it 
can make all contracts necessary for the proper trans- 
action of the county business. 

The government of the county, is to some extent, 
divided into legislative, executive and judicial 
branches, although the greater portion of the powers 
exercised by its officers come within the executive and 
judicial branches. 

Other Provisions Eelating to Counties. — For pur- 
poses of local government Illinois was divided into 



59 

counties before it became a State, and the county sys- 
tem of government was continued under the constitu- 
tions of 1818 and 1848. The Constitution of 1870 recog- 
nized these subdivisions of the State as they existed 
at the time of its adoption. 

The last named instrument made no change in the 
number of boundaries of the counties, but restricted 
the power of the legislature in respect thereto, by pro- 
viding that no new county shall be formed having a 
smaller area than four hundred square miles, and that 
the territory of no county shall be reduced in area 
below that limit, and prohibiting substantially any 
change in the boundaries of a county without the con- 
sent of a majority of the legal voters of such county. 
The Constitution of 1870 also recognized the rivalry 
which had formerly existed between the respective ad- 
herents of the county and township systems of local 
government, by substantially re-enacting the provision 
of the Constitution of 1848, whereby the voters of each 
county are given the right to determine which system 
shall be used. It also provided for the general gov- 
ernment of counties not under toiunsfoip organization, 
by committing the management of their affairs to 
"The Board of County Commissioners," consisting of 
three persons in each county elected by the people. 

Special arrangement is made for the county affairs 
of Cook County by the provision that they shall be 
managed by a board of fifteen commissioners, ten of 
whom shall be elected from the City of Chicago and 
five from the towns outside of the city. The govern- 
ment of other counties under township organization is 
managed by a board of supervisors composed of the 
supervisors of the various towns in the county. 

The Constitution also requires the election of the fol- 
lowing judicial and executive officers — viz.: County 
Judge, County Clerk, Sheriff, Treasurer, Coroner, 
Clerk of the Circuit Court and Eecorder of Deeds, and 
provides for the compensation of these officers. All 
counties in the State have the above-named officers, 



60 

except that, in counties having a population of less 
than 60,000 inhabitants, the clerk of the Circuit Court 
may also act as recorder. 

Education. — By the constitution of 1870, the State 
of Illinois for the first time made the establishment of 
a common school system by the general assembly, a 
constitutional requirement. The constitution requires 
that the general assembly shall provide a system of 
free schools, in which all children of this State may 
receive a good common-school education; and that all 
grants and gifts for educational purposes and the pro- 
ceeds thereof shall be applied faithfully to the objects 
for which they were made. 

That religious differences may not influence the 
management of the public schools or interfere with 
their efficient operation, the constitution prohibits the 
legislature, and every municipality in the State, from 
expending, or attempting to expend, any public money 
for the support of any church, and from helping to 
sustain or support any school or literary institution of 
any kind under the control of any church or sectarian 
denomination. 

These provisions of the constitution meet with the 
approval of the citizens of the State, regardless of 
their religious affiliations, and by general consent all 
religious instruction in the sectarian sense has been ex- 
cluded from the public schools of Illinois. 

To ensure honesty in the management of school af- 
fairs, the constitution forbids any teacher, state, 
county, township or district school officer from being 
interested in the sales, proceeds or profits of any book, 
apparatus or furniture used, or to be used, in any 
school in this State, with which he is connected. 

The constitution also provides for the election of a 
Superintendent of Public Instruction, who is one of the 
executive officers of the State, and for the election of 
the County Superintendent in each county of the State. 

Miscellaneous Topics. — In addition to the restric- 
tions upon the legislative power which have already 



61 

been noted, the general assembly was also prohibited 
from releasing any county, city or other municipality 
from its proportionate share of the taxes levied for 
state purposes and from releasing or extinguishing in 
whole or in part the indebtedness of any corporation 
or individual to the state or to any municipality and 
from imposing any tax upon municipal corporations 
for corporate purposes. The seizure or sale of private 
property for the payment of the corporate debts of a 
municipality was also forbidden. 

These restrictive provisions which were embodied 
in the Constitution of 1870 were more complete than 
those contained in the organic law of any other State 
prior to that time, but the document was also charac- 
terized by other distinctive features in its mandatory 
provisions whereby the legislature was directed to 
enact suitable laws upon sundry specified subjects. 
Among the more important of these specifically enum- 
erated topics are the protection of miners, homestead 
and exemption laws, drainage, corporate management, 
unjust discrimination in railroad freight and passen- 
ger tariffs, inspection of grain for the protection of 
producers, shippers and receivers, and public educa- 
tion. 

Other original and important articles are those re- 
lating to elevators and warehouses, the charter obliga- 
tions of the Illinois Central Eailroad, the sale or lease 
of the Illinois and Michigan Canal, subscription by 
municipalities to corporate stocks, and minority repre- 
sentation which has been already explained. 

In the next chapter the full text of the constitution 
will be presented, together with the construction given 
to the various clauses by reviewing courts in some 
leading cases. It is not the intention, however, to fur- 
nish a complete annotation of the constitution, but 
rather to direct the attention of the student to those 
cases which are useful aids to a clear understanding 
of its provisions and to that end rather full citations 
will be made of cases arising under each section that 
has received the attention of the courts. 



PART II. 

CHAPTER VI. 
CONSTITUTION OF 1870. 

(WITH ANNOTATIONS.) 

Preamble. We, the people of the State of Illinois — 
grateful to Almighty God for the civil, political and re- 
ligious liberty which He hath so long permitted us to 
enjoy, and looking to Him for a blessing upon our en- 
deavors to secure and transmit the same unimpaired 
to succeeding generations — in order to form a more 
perfect government, establish justice, insure domestic 
tranquillity, provide for the common defense, promote 
the general welfare, and secure the blessings of liberty 
to ourselves and our posterity, do ordain and establish 
this constitution for the State of Illinois. 

The language of this preamble is identical with that 
of the Constitution of 1848. 

"It must be presumed that when the present con- 
stitution was adopted, it was with full knowledge of 
the interpretation that had been placed by this court 
upon the language incorporated therein, which was 
taken from the prior constitution. ' ' 

Sterling Gas Co. v. Higby, 134 111. 566. 
AETICLE I. 

BOUNDARIES. 

The boundaries and jurisdiction of the state shall be 
as follows, to-wit : Beginning at the mouth of the Wa- 
bash river; thence up the same, and with the line of 
Indiana, to the northwest corner of said state; thence 
east, with the line of the same state, to the middle of 
Lake Michigan ; thence north, along the middle of said 
lake, to north latitude 42° and 30'; thence west to the 
middle of the Mississippi river, and thence down along 
the middle of that river to its confluence with the Ohio 
river, and thence up the latter river, along its north- 

(62) 



63 

western shore, to the place of beginning: Provided, 
that this state shall exercise such jurisdiction upon the 
Ohio river as she is now entitled to, or such as may 
hereafter be agreed upon by this State and the State of 
Kentucky. 

"It seems clear from all legislation and ordinances 
on this subject, it was intended the Mississippi river 
should constitute 'a common boundary' between the 
State of Illinois and any State or States that might 
be formed to the west and next to that river. That 
intention is more definitely declared than it was in re- 
gard to the Ohio river, for in fixing the boundary of 
Illinois, when the line down along the middle of the 
Mississippi river should reach the confluence of that 
river with the Ohio, the boundary should be from thence 
up the latter river i along its north-western shore, ' and 
yet it has been held the river is the boundary between 
States divided by the Ohio river, although the original 
proprietor, in granting the territory, retained the river 
within its own domain. The law, as stated by law 
writers, and in the adjudged cases, seems to be, that 
where a river is declared to be the boundary between 
States, although it may change imperceptibly, from 
natural causes, the river, 'as it runs, continues to be 
the boundary.' But if the river should suddenly 
change its course, or desert the original channel, the 
rule of law is, the boundary remains in the middle of 
the deserted river bed. Where a river is a boundary 
between States, as is the Mississippi between Illinois 
and Missouri, it is the main — the permanent — river 
which constitutes the boundary, and not that part which 
flows in seasons of high water, and is dry at other 
times. Handley's Lessee v. Anthony, 5 Wheat. 174). 
In no other way would a river be a permanent fixed 
boundary, at all times readily ascertainable. There 
are many cogent reasons why the boundary lines be- 
tween States should be permanent, otherwise territory 
in one State at one time, sooner or later might be in 
another State. It must be in one State all the time, 
or else the State would lose jurisdiction over it. 

Treating, then, as must be done, the Mississippi river 
as a common boundary between the States of Illinois 



64 

and Missouri, what meaning is to be given to the term, 
' middle of the Mississippi river,' used in the enabling 
act of Congress and in the constitution, defining the 
boundaries of the State of Illinois'? Whether, when 
mere private rights are involved, the phrases the 
' middle of the river,' and the 'middle of the main 
channel,' or, what is the same thing, the 'thread of 
the stream,' mean the same thing, and may be inter- 
changeably used, there are many considerations affect- 
ing the public welfare why it should be held the 'mid- 
dle of the channel' of a river between independent 
States or countries should be regarded as the bound- 
ary line between them, in the absence of express agree- 
ment to the contrary. When applied to rivers as 
boundaries between States, the phrases, 'middle of the 
river,' and 'middle of the main channel,' are equiva- 
lent expressions, and both mean the center line of the 
main channel, — or, as it is most frequently expressed, 
the 'thread of the stream.' Should the expression, 
'middle of the river,' be construed to mean a line mid- 
way of the water surface, that would give no perma- 
nent boundary that could be ascertained. It would be 
at one point at one time, and distant away at an- 
other. ' ' 

Buttenuth et al. v. St. Louis Bridge Co. ,123 111. 
545. 

See also: 

St. Louis Bridge Co. v. The People, 125 111. 226. 
Keokuk and Hamilton Bridge Co. v. The People, 
145 111. 596. 

AETICLE II. 

BILL OF EIGHTS. 

Sec. 1. All men are by nature free and independ- 
ent, and have certain inherent and inalienable rights — 
among these are life, liberty, and the pursuit of hap- 
piness. To secure these rights and the protection of 
property, governments are instituted among* men, de- 
riving their just powers from the consent of the gov- 
erned. 



65 

Sec. 2. No person shall be deprived of life, liberty 
or property, without due process of law. 

The confinement of non-criminal children in State 
schools under the act of May 28, 1879, entitled "An 
act to aid industrial schools for girls" is not pro- 
hibited by this section. There is no force in the objec- 
tion that the act in question is an infringement upon 
the personal liberty of the citizen, as guaranteed by 
the constitution. The restraints which the act im- 
poses are only such as are essential to the comfort and 
well-being of the unfortunate class of persons who are 
brought within its provisions. All governmental and 
parental care necessarily imposes more or less whole- 
some restraint, and we see nothing in the act which 
looks beyond this. 

County of McLean v. Humphreys, 104 111. 383. 

"Property in its broader sense, is not the physical 
thing which may be the subject of ownership, but is 
the right of dominion, possession and power of dis- 
position which may be acquired over it ; and the right 
of property, preserved by the constitution, is the right 
not only to possess and enjoy it, but also to acquire 
it in any lawful mode, or by following any lawful in- 
dustrial pursuit which the citizen, in the exercise of 
the liberty guaranteed, may choose to adopt. Labor is 
the primary foundation of all wealth. The property 
which each one has in his own labor is the common 
heritage, and, as an incident to the right to acquire 
other property, the liberty to enter into contracts by 
which labor may be employed in such way as the 
laborer shall deem most beneficial, and of others to 
employ such labor, is necessarily included in the con- 
stitutional guaranty. ' ' 

Braceville Coal Co. v. The People, 147 111. 71. 

Frorer v. The People, 114 111. 171. 

Ritchie v. The People, 155 111. 105. 

"The words 'life, liberty and property' are consti- 
tutional terms, and are to be taken in their broadest 
sense. They indicate the three great subdivisions of 
all civil right. The term 'property/ in this clause, 
embraces all valuable interests which 'a man may 



66 

possess outside of himself, — that is to say, outside of 
his life and liberty. It is not confined to mere tangi- 
ble property, but extends to every species of vested 
right. In my judgment it would be a very narrow and 
technical construction to hold otherwise. In an ad- 
vanced civilization like ours a very large proportion 
of the property of individuals is not visible and tangi- 
ble, but consists of rights and claims against others or 
against the government itself. Now, an exemption from 
a demand or an immunity from prosecution in a suit 
is as valuable to the one party as the right to the de- 
mand or to prosecute the suit is to the other. The 
two things are correlative, and to say that the one is 
protected by constitutional guaranties and that the 
other is not, seems to me almost an absurdity. One 
right is as valuable as the other." 

Board of Education v. Blodgett, 155 111. 448. 
Citing with approval the dissenting opinion in 

Campbell v. Bolt, 115 U. S. 620. 

The act of 1871 regulating warehouses and giving 
effect to article 13 of the constitution does not violate 
this section. 

"One of the first and most imperative duties of the 
law making power is, to enact all necessary laws to 
remedy existing evils, taking care, in so doing, not to 
transgress any constitutional limitation. The means 
by which to do it most effectually, is in the discretion 
of the legislature, keeping in view the provisions of 
the organic law. This law in no respects affects the 
title, possession or use of this warehouse by the plaint- 
iffs in error. It deprives them of nothing they owned 
and possessed at the time of its enactment. Antici- 
pated profits are not, and can not, be held and regarded 
as property in the ownership or possession of him who 
owns the article out of which profits are expected to 
flow. The property is one thing, and remains un- 
touched — the profits are not in esse, and can not be 
claimed as property. When it is said one is deprived 
of his property, the understanding is, it has been taken 
away from him — he is divested of title and possession. 
This provision in the Bill of Eights has never been so 
construed by the courts of any State whose constitu- 



67 

tion has such a provision, as to deny to the legislature 
the power to make all needful rules and regulations 
respecting the use and enjoyment of property.' ' 
Munn et al. v. The People, 69 111. 90. 

A statute giving the county board power to remove 
a county treasurer without trial does not violate this 
section. 

"It is impossible to conceive how, under our form 
of government, a person can own or have a title to 
a governmental office. Offices are created for the ad- 
ministration of public affairs. When a person is in- 
ducted into an office, he thereby becomes empowered 
to exercise its powers and perform its duties, not for 
his, but for the public benefit. It would be a misnomer 
and a perversion of terms to say that an incumbent 
owned an office, or had any title to it. ' ' 

Donahue v. County of Will, 100 111. 103. 

"The phrase, 'due process of law,' is the equivalent 
of the words, 'law of the land,' as used in Magna 
Charta, and means, 'in the due course of legal pro- 
ceedings according to those rules and forms which have 
been established for the protection of private rights. ,, 
BurdicJc v. People, 149 111. 605. 
See also Board of Education v. Bakeivell, 122 111. 348. 
Board of Education v. Blodgett, 155 111. 441. 

Sec. 3. The free exercise and enjoyment of re- 
ligious profession and worship, without discrimina- 
tion, shall forever be guaranteed ; and no person shall 
be denied any civil or political right, privilege or capac- 
ity, on account of his religious opinions; but the lib- 
erty of conscience hereby secured shall not be con- 
strued to dispense with oaths or affirmations, excuse 
acts of licentiousness, or justify practices inconsistent 
with the peace or safety of the state. No person shall 
be required to attend or support any ministry or place 
of worship against his consent, nor shall any prefer- 
ence be given by law to any religious denomination or 
mode of worship. 



68 

"Our constitution provides, that 'the free exercise 
and enjoyment of religions profession and worship, 
without discrimination, shall forever be guaranteed.' 
In ecclesiastical law, profession means the act of enter- 
ing into a religious order. Eeligious worship consists 
in the performance of all the external acts, and the ob- 
servance of all ordinances and ceremonies, which are 
engaged in with the sole and avowed object of honor- 
ing God. The constitution intended to guarantee, 
from all interference by the State, not only each man's 
religious faith, but his membership in the church, and 
the rites and discipline which might be adopted. The 
only exception to uncontrolled liberty is, that acts of 
licentiousness shall not be excused, and practices in- 
consistent with the peace and safety of the State, shall 
not be justified. Freedom of religious profession and 
worship can not be maintained, if the civil courts trench 
upon the domain of the church, construe its canons and 
rules, dictate its discipline, and regulate its trials. 
The larger portion of the christian world has always 
recognized the truth of the declaration, 'A church 
without discipline must become, if not already, a church 
without religion. ' It is as much a delusion to confer 
religious liberty without the right to make and enforce 
rules and canons, as to create government with no 
power to punish offenders. The constitution guaran- 
tees the 'free exercise and enjoyment. ' This implies, 
not alone the practice, but the 'possession with satis- 
faction' — not alone the exercise, but the exercise coup- 
led with enjoyment. This 'free exercise and enjoy- 
ment' must be, as each man, and each voluntary asso- 
ciation of men, may determine. The civil power may 
contribute to the protection, but can not interfere to 
destroy or fritter away.' 

Chase v. Cheney, 58 111. 537. 

' ' Since the adoption of the Constitution of 1870, the 
rule of law disqualifying witnesses on account of re- 
ligious opinions has been entirely changed. The pen- 
alties denounced by law against the crime of perjury, 
and the innate moral principles of man, and the inborn 
sense of right and wrong, are now regarded such a 
sufficient guarantee against false swearing as to admit 



witnesses to testify, leaving it to courts and juries to 
determine the weight proper to be given to their evi- 
dence. Under the common law as held formerly by 
our Supreme Court, no man could be called in a court 
of justice to testify unless he believed in a God, who 
would punish for such crimes, either here or hereafter. 
Fear of Divine punishment seemed to be thought the 
only effective restraint against the crime of perjury, 
and yet the same law prescribed that no witness should 
be qualified to testify in a case where he was a party, 
or had the slightest pecuniary interest in the result of 
the suit. The policy of such rules has long been 
doubted by many wise jurists and legislators. The 
last mentioned rule has been changed for our Legisla- 
ture for some years, with happy results, and almost 
universal approval, following the change of the former 
rule, as we understand it, by the Constitution of 1870. 
It was aimed, as we think, by the constitutional conven- 
tion, to firmly establish all men in this State, without 
regard to their religious beliefs, in the full enjoyment 
of their civil rights, privileges and capacities, includ- 
ing the right to testify, beyond the power even of the 
Legislature to change." 

Ewing v. Bailey, 36 111. App. 194. 

Sec. 4. Every person may freely speak, write and 
publish on all subjects, being responsible for the abuse 
of that liberty ; and in all trials for libel, both civil and 
criminal, the truth, when published with good motives 
and for justifiable ends, shall be a sufficient defense. 

The constitutional provision contained in the above 
section applies to words spoken or published in regard 
to judicial conduct and character. The publication of 
a libel on a grand jury or on any member thereof in re- 
lation to any act already done by them in their official 
capacity, but which has no tendency directly to impede, 
hinder or obstruct the grand jury in the discharge of 
any of its duties remaining to be performed after the 
publication is made, cannot be punished summarily as 
a contempt of court. It is not intended by our consti- 
tution that a publication however libelous, but not 
directly intended to hinder, obstruct or delay, courts 



70 

in the exercise of their proper functions, shall be 
treated and pnnished as contempt. 

Storey v. The People, 79 111. 45. 

Sec. 5. The right of trial by jury as heretofore en- 
joyed, shall remain inviolate; but the trial of civil 
cases before justices of the peace by a jury of less than 
twelve men may be authorized by law. 

The constitutional provision, giving a right to trial 
by jury, was designed to secure the right of trial by 
jury, in all tribunals exercising common law jurisdic- 
tion, as it had formerly been applied. It was not in- 
tended to confer the right in any class of cases where 
it had not previously existed, nor was it intended to 
introduce it into special summary jurisdictions un- 
known to the common law, and which do not provide 
for that mode of trial. 

The right of trial by jury does not extend to suits 
in chancery, without regard to the fact whether the 
cause of action was one of equitable cognizance prior 
to the adoption of the existing constitution or since. 
But it is not competent for the legislature to defeat 
the right of a jury trial in common law cases, by simply 
declaring they may be tried in courts of chancery, and 
that the proceedings therein shall conform to the pro- 
ceedings in chancery. This would be an attempt to 
evade the provisions of the constitution. 
Ward v. Farwell, 97 111. 594. 

The act providing that a court of chancery may de- 
termine bills to quiet title to real estate, where the 
lands are unimproved and unoccupied, does not violate 
the above section, as courts of chancery may submit 
issues of fact to trial by jury. If such right should 
be refused by the court, the denial thereof would come 
from the court, and not from the law. 

Where jurisdiction is given to a court of chancery 
in a case where there existed before the adoption of a 
constitution a remedy at law, under which was given 
the right of trial by jury, it is presumed such a trial 
would be allowed, and obedience paid to the consti- 
tutional provision giving such right. 
Gage v. Ewing, 107 111. 11. 



71 

"The present constitution of the State preserves the 
right of trial by jury in all cases where that right had 
existed before its adoption. The right to such trial 
does not extend to cases in equity, but is confined to 
cases at law. The act known as the Burnt Records 
act is not, unconstitutional, in depriving a party of a 
trial by jury." 

HeacocJc v. Hosmer, 109 111. 245. 

The constitutional guaranty of the right of trial by 
jury refers to such right in that respect as was enjoyed 
at the time of the adoption of the constitution. It was 
not violated by the statute which provides for the 
entry of final judgment by the Appellate Court in cer- 
tain cases. 

Commercial Insurance Co. v. Scammon, 123 111. 
601. 

"All agree that the statute contemplates a^ trial by 
jury, and that the court could not dispense with the 
jury without the consent of all parties interested; but 
we do not understand any of the cases cited as holding 
that a jury may not be waived as in any other civil 
case, and we think the result of our decisions is that 
it can. The verdict of a jury in the contest of a will 
has the same effect, and the power of a court to set 
it aside and grant a new trial is the same, as in actions 
at law. The court having the ultimate right to deter- 
mine whether the issue has been decided in accordance 
with the evidence, no good reason can be shown why 
the parties may not, with the consent of the court, 
submit such issue to it in the first place, if they see 
proper so to do. Of course, the verdict of the jury is 
only to be set aside when it is manifestly against the 
weight of the evidence, but the court alone has the 
power to say when it is so. There was no error in the 
hearing of the case without a jury." 
Whipple v. Eddy, 161 111. 118. 

The right of trial by jury under the constitution 
exists in those tribunals which exercise common law 
jurisdiction in regard to matters wherein such right 
existed at common law. It does not limit the author- 
ity of courts to exercise discretionary powers as in the 
hearing of exceptions to an administrator's report or 



72 

in proceedings by way of citation to compel him to 
make a proper report and settlement of the estate. 
Boyd v. Swallows, 59 111. App. 635. 

Sec. 6. The right of the people to be secure in their 
persons, houses, papers and effects, against unreason- 
able searches and seizures, shall not be violated; and 
no warrant shall issue without probable cause, sup- 
ported by affidavit, particularly describing the place to 
be searched, and the persons or things to be seized. 

The above section is a limitation upon the power of 
the State government and has no reference to the un- 
authorized acts of individuals. This section does not 
prohibit all searches and seizures, but only such as are 
unreasonable. Where a party without any search 
warrant or other legal authority entered the rooms 
of another, searched the same and seized therein evi- 
dences of the commission of crime, the act was held to 
be in violation of the civil rights of the latter, and a 
trespass for which the former might be held liable in a 
civil action, but it did not render incompetent the evi- 
dences of the commission of the crime which were 
found in the unauthorized search. 

Gindrat v. The People, 138 111. 103. 

The constitutional right secured by this section is 
violated by an order of court by which the books and 
papers of an individual are taken from his custody 
and committed to that of a third person for an indefi- 
nite period of time for an inspection generally into all 
the affairs of the individual to be made by the opposite 
party and his counsel, with leave to take copies of the 
entries therein. Such an order is a violation of the 
constitutional right to be secure against unreasonable 
seizure of the papers and effects of an individual. 
Lester v. The People, 150 111. 421. 

Sec. 7. All persons shall be bailable by suffi- 
cient sureties, except for capital offenses, where the 
proof is evident or the presumption great; and the 
privilege or writ of habeas corpus shall not be sus- 



73 

pended, unless when in cases of rebellion or invasion 
the public safety may require it. 

No court has power to require bail. The right to 
be bailed being secured by the above section is inde- 
pendent of courts and officers, but the accused can not 
be required to exercise it. 

Lewis v. The People, 18 111. App. 77. 

Sec. 8. No person shall be held to answer for a 
criminal offense, unless on indictment of a grand jury, 
except in cases in which the punishment is by fine, or 
imprisonment otherwise than in the penitentiary, in 
cases of impeachment, and in cases arising in the army 
and navy, or in the militia, when in actual service in 
time of war or public danger : Provided, that the grand 
jury may be abolished by law in all cases. 

Sec. 9. In all criminal prosecutions the accused 
shall have the right to appear and defend in person 
and by counsel, to demand the nature and cause of the 
accusation and to have a copy thereof, to meet the wit- 
nesses face to face, and to have process to compel the 
attendance of witnesses in his behalf, and a speedy 
public trial by an impartial jury of the county or dis- 
trict in which the offense is alleged to have been com- 
mitted. 

1 ' The phraseology of that section of our present con- 
stitution which relates to the place of trial in criminal 
prosecution differs materially in one respect from that 
of the corresponding provisions of the constitutions of 
1818 and 1848. # The constitution of 1818 provided 
that, in all criminal prosecutions, the accused should 
have a right to 'a speedy public trial by an impartial 
jury of the vicinage ; ' and the constitution of 1848 pro- 
vided that he should have a right to 'a speedy public 
trial by an impartial jury of the county or district 
wherein the offense shall have been committed. ' It 
must be admitted, probably, that both these constitu- 
tional provisions were susceptible of but one construc- 
tion, viz., that of limiting jurisdiction in all criminal 
prosecutions absolutely to the county where the crime 



74 

alleged was actually committed. The framers of our 
present constitution, recognizing as we may assume, 
the infirmity of this rule particularly in its applica- 
tion to cases like the present where it is impossible to 
determine in which of two or more counties a particular 
crime was committed, revised the section so as to 
make it read as follows : 'In all criminal prosecutions 
the accused shall have a right to a speedy public trial 
by an impartial jury of the county or district in which 
the offense is alleged to have been committed.' This 
modified phraseology may fairly be regarded as evi- 
dencing an intention to relax in some degree the rigid 
rule formerly prevailing. The prosecution may now 
be had in the county where the offense is alleged to 
have been committed. The allegation here referred to 
is doubtless that made by the indictment, that being 
the only document in which the proper allegations as 
to the vicinage of the crime are ordinarily made. The 
constitution then may be regarded as empowering the 
General Assembly to provide, in its discretion for the 
presentment of indictments in which the allegation as 
to the vicinage of the offense may not be in accord- 
ance with the actual fact. If this is not so, the words 
inserted in the present constitution are meaningless, 
and the instrument must be interpreted precisely as 
though they had not been used. ' ' 

Watt v. The People, 126 111. 17. 

Dying declarations relating to the injury causing 
death are admissible, although constituting an excep- 
tion to the right of the accused to meet witnesses face 
to face. 

"It is vain to attempt to disguise the infirmities and 
imperfections of the human mind, and its susceptibility 
to false impressions, under circumstances touching the 
heart and exciting the sympathies; and the law has 
wisely, in case of dying declarations, required all the 
guaranties of truth the nature of the case admits of. 
The principle upon which such declarations are admit- 
ted is : that they are made in a condition so solemn and 
awful as to exclude the supposition that the party mak- 
ing them could have been influenced by malice, revenge, 
or any conceivable motive to misrepresent, and when 
every inducement, emotion and motive is to speak the 



75 

truth — in other words in view of impending death and 
under the sanctions of a moral sense of certain and 
just retribution. 

Dying declarations are, therefore, such as are made 
by the party, relating to the facts of the injury of 
which he afterwards dies, under the fixed belief and 
moral conviction that his death is impending and cer- 
tain to follow almost immediately, without opportunity 
for repentance, and in the absence of all hope of avoid- 
ance ; when he has despaired of life and looks to death 
as inevitable and at hand." 

Starkey v. The People, 17 111. 20. 

The right to a speedy trial which is guaranteed by 
the above section to one accused of crime, relates only 
to arbitrary and oppressive delays and is not violated 
by such delays as are due to the lapse of time between 
terms of court or to such as are unavoidable on account 
of the amount of other criminal business having prior- 
ity on the trial docket, or to such as shall be due to 
proper efforts in procuring an impartial jury and the 
attendance of witnesses. 

Weyrich v. The People, 89 111. 90. 

The foregoing clause of the constitution guarantees 
to the accused party in every criminal prosecution "a 
speedy trial by an impartial jury." This section is 
not violated by the statute which provides "that in the 
trial of any criminal acts the fact that a person called 
as a juror has formed an opinion or impression based 
upon newspaper evidence (about the truth of which he 
has expressed no opinion) shall not disqualify him to 
serve as a juror in such case if he shall upon oath state 
that he believes he can fairly and impartially render a 
verdict therein in accordance with the law and the evi- 
dence, and the court shall be satisfied of the truth of 
such statement." 

Spies v. The People, 122 111. 1. 

Sec. 10. No person shall be compelled in any crim- 
inal case to give evidence against himself, or be twice 
put in jeopardy for the same offense. 



76 

It is not admissible to prove that the murder was 
committed by striking the deceased on the head with 
a gun, under an indictment charging the commission 
of the murder by shooting. 

"To persons not accustomed to legal distinctions, it 
may seem a solecism to speak of two indictments as 
charging different offenses when they relate to the 
murder of the same person, but it is nevertheless un- 
doubtedly true, that for the purpose of judicial pro- 
ceedings, an indictment charging a murder to have 
been done by shooting with powder and shot from a 
gun, does describe a murder legally different from that 
described in an indictment charging the same defend- 
ant with a murder of the same person, by beating him 
upon the head ; and this for the reason, that if all the 
facts charged in the second indictment were proved or 
admitted, the murder described in the first indictment 
would not be legally established so as to authorize a 
conviction. ' ' 

Guedel v. The People, 43 111. 231. 

"The constitutional boundaries of this State carry 
her territorial limits to the middle of the Mississippi 
river. The offense for which plaintiff in error was 
indicted and tried in Eock Island county, was both 
alleged and proved to have been committed within that 
county, and was, therefore, an offense against the dig- 
nity and sovereignty of the State of Illinois. The 
statutes of Iowa were not set out in the plea, or offered 
in evidence, so far as the record shows. The bar of 
the conviction in the State of Iowa was not attempted 
to be placed upon the theory of concurrent jurisdiction 
in the courts of each State. It is a general principle, 
that the laws of a country do not extend beyond its 
territorial limits, and this is especially so as to crim- 
inal laws, and it is also a general principle, that the 
conviction and punishment of an accused in one sov- 
ereignty is no bar to his conviction and punishment in 
another, in which the offense was originally commit- 
ted.' ' 

Phillips v. The People, 55 111. 433. 

"Where an ordinance of a city, which prohibits the 



77 

keeping of a gaming house, prescribes as the penalty 
for the offense a fine of $25, a conviction under the 
ordinance will not operate as a bar to a subsequent 
prosecution by indictment for the same offense, for 
the reason that the penalty imposed by the ordinance 
is very much less than that prescribed in the statute, 
While effect has been allowed to ordinances which im- 
posed greater penalties than those prescribed by the 
general law of the State for the same offense, that will 
not be done where an ordinance imposes a lesser pen- 
alty than the statute.'' 

Bobbins v. The People, 95 111. 175. 

"Where the commission of a particular act consti- 
tutes two offenses of different grades of criminality 
and punishable differently, a conviction or acquittal 
of a charge of committing one of them will be no bar to 
a conviction for the other. The second charge places 
the defendant in jeopardy for a new offense." 
Nicholson v. The People, 29 111. App. 57. 

"Where a man arrested by an officer without a war- 
rant upon suspicion of having committed murder is 
compelled to answer under oath as a witness at a cor- 
oner's inquest, statements which he thus makes are not 
admissible against him on his trial for the murder. 
The thing prohibited by the rule is ' ' the special inter- 
rogation of the accused — the converting him, whether 
willing or not into a witness against himself ; assuming 
his guilt before proof, and subjecting him to an inter- 
rogation conducted on that hypothesis.' But it is 
otherwise where the statements made are voluntarv, 
and where the oath taken is voluntary." 
Lyons v. The People, 137 111. 616. 

"A witness before the grand jury, after stating that 
he knew of persons playing with cards for money in 
the county within the last eighteen months, was asked, 
"Who did you see playing" which question he refused 
to answer, on the ground he could not do so without 
giving evidence tending to criminate himself, and he 
was fined for contempt of court in refusing to answer 



78 

the question: Held, that the court erred in fining the 
witness for refusing to answer the question.' ' 
Minters v. The People, 139 111. 363. 

"The objection that evidence may tend to criminate 
the witness does not affect his competency to testify. 
It is his personal privilege to speak as to a matter 
tending to criminate himself, but he is not incompetent 
to testify if he sees fit to do so." 

Thompson v. Wilson, 59 111. App. 162. 

Sec. 11. All penalties shall be proportioned to the 
nature of the offense, and no conviction shall work cor- 
ruption of blood or forfeiture of estate ; nor shall any 
person be transported out of the state for any offense 
committed within the same. 

"An act of the legislature making any discrimina- 
tion on the part of railroad companies in their charges 
for freight a penal offense, and providing for a for- 
feiture of all their franchises for any wilful violation 
of the act, without any other penalty for the first of- 
fense, is in violation of the spirit of the constitutional 
provision which requires all penalties to be propor- 
tioned to the nature of the offense, and also of sec. 15 
of art. 11, under which such a law is framed, which only 
authorizes the penalty to extend to forfeiture of fran- 
chises and property 'when necessary for that purpose.' 

' ' A law admitting of but one penalty, and that of the 
harshest possible character, will be subjected by the 
courts to close criticism and to a strict construction." 
C. & A. R. R. Co. v. The People, 67 111. 13. 

' ' The first section of the act of 1883, respecting con- 
viction upon second and third offenses, and providing 
for increased punishment on such convictions, is not in 
violation of section 11, article 2, of the constitution, re- 
quiring all penalties to be proportioned to the nature 
of the offense, nor of the constitutional provision that 
no one shall be put in jeopardy twice for the same of- 
fense. ' ' 

" Kelly v. The People, 115 111. 583. 



79 

Sec. 12. No person shall be imprisoned for debt, 
unless upon refusal to deliver up his estate for the 
benefit of his creditors, in such manner as shall be 
prescribed by law, or in cases where there is strong 
presumption of fraud. 

' 'The right to personal liberty is one of the most 
valuable and most cherished rights appertaining to 
man in society, and one of which he cannot be deprived, 
except by the judgment of his peers, or by the law of 
the land. In the barbaric age of the law in this coun- 
try, the unfortunate debtor could be deprived of this 
inestimable right, if he failed to pay an honest debt. 
His creditor could keep him in arcta custodia for the 
misfortune of being poor. This was so in all the 
States of the Union, whose organic laws had been es- 
tablished prior to the year eighteen hundred and 
eighteen except Tennessee. In that year the constitu- 
tion of this State was adopted, which contained as one 
of its fundamental principles alike beneficent and just, 
this provision: 'No person shall be imprisoned for 
debt, unless upon refusal to deliver up his estate for 
the benefit of his creditors, in such manner as shall be 
prescribed by law, or cases where there is strong pre- 
sumption of fraud.' In looking back to our earliest 
legislative records, it will be perceived that the first 
General Assembly which met under this constitution, 
failed to observe this then novel provision, for, at the 
second session they passed an act at variance with it 
which was approved on the 22nd March, 1819.' ' Here 
follows an exhaustive review of prior legislation in 
this State on the subject of imprisonment for debt. 
Tuttle v. Wilson, 24 111. 555. 

We have held that this prohibition of the constitu- 
tion applies to actions upon contracts, express or im- 
plied. Its design is to relieve debtors from imprison- 
ment who are unable to perform their engagements. 
They are exempt from arrest, if they act in good faith 
towards their creditors. The prohibition does not ex- 
tend to actions for torts, nor to fines or penalties, aris- 
ing from a violation of the penal laws of the State. It 
has reference to debts arising ex contractu. The stat- 



80 

ute which authorizes a commitment to the county jail 
for the non payment of a fine and costs does not violate 
this section 

Kennedy v. The People, 122 111. 652. 

"The policy of our law is opposed to imprisonment 
for debt, and no person within this State can be so 
imprisoned, except upon refusal to surrender his es- 
tate for the benefit of his creditors, as prescribed by 
law, or in cases where there is a strong presumption of 
fraud. ' ' 

Kitson v. Farwell, 132 111. 327. 

Sec. 13. Private property shall not be taken or dam- 
aged for public use without just compensation. Such 
compensation, when not made by the state, shall be 
ascertained by a jury, as shall be prescribed by law. 
The fee of land taken for railroad tracks, without con- 
sent of the owners thereof, shall remain in such own- 
ers, subject to the use for which it is taken. 

"Under the constitution of 1848 compensation in 
condemnation proceedings was only awarded for the 
land taken, and not for damages to the land not taken. 
It cannot be claimed that a simple deed or grant of 
land for right of way, to a railroad company will be 
presumed to have any greater effect than a condemna- 
tion judgment. It is said that, as condemnation pro- 
ceedings are presumed to consider and include all dam- 
ages suffered, so deeds of rights of way are presumed 
to include all damages arising from a proper construc- 
tion of the improvement. But it is difficult to under- 
stand how, under the constitution of 1848, where the 
owner only received, as the result of the condemnation 
proceeding, compensation for the land taken and not 
damages to the land not taken, a deed of land to a 
railroad company, made when that constitution was 
in force, can be presumed to have been in consideration 
both of compensation for the land conveyed and of 
future damages to the land not conveyed, in the ab- 
sence of anything on the face of the deed to show that 
the land was conveyed for any particular purpose, or 
that the parties had in mind any damages to accrue to 
other land." 



81 

' ' The doctrine announced in some of the text books, 
that, where land has been acquired for railroad pur- 
poses by deed or grant, as well as by condemnation, all 
damages to the portion of the owner 's land not taken, 
for which an action would lie at common law, are pre- 
sumed to have been considered in fixing the price, may 
well be applied to such a deed or grant made in this 
State since the constitution of 1870 went into force. ' ' 

Wylie v. Elwood, 134 111. 289-90. 

Sec. 14. No ex post facto law, or, law impairing the 
obligation of contracts, or making any irrevocable 
grant of special privileges or immunities, shall be 
passed. 

"The charters became a contract between the rail- 
road companies and the State, that they might exercise 
their charter rights till the expiration of the term for 
which their charters were granted, unless, by some act 
violative of the obligations assumed by their organiza- 
tion, they should forfeit these privileges and their 
franchises; and under the constitution of the United 
States, the General Assembly has no power to impair 
the obligation of these contracts. 

When the General Assembly brings into existence 
an artificial person or corporation, it may, at pleasure, 
endow it with such faculties or powers as it may deem 
proper and for the benefit of the corporators and the 
public. It may grant or withhold powers at pleasure ; 
but it is believed that body is powerless to confer 
greater or more unlimited powers than are possessed 
by natural persons. The power, however, may, no 
doubt, be conferred to that extent when necessary to 
accomplish the end sought ; but it would be contrary to 
the very object of the creation of government, to create 
bodies or artificial persons beyond the power of con- 
trol by the government. To create bodies in its limits 
beyond the governing power of the State, bodies that 
are only controlled by their own will, independent of 
law and beyond its control, would be beyond the pur- 
pose of establishing government. It has been repeat- 



82 

edly held by this court that where a corporation is 
thus created, it becomes amenable to the police power 
of the State to the full extent that natural persons are 
subject to its control. 

Buggies v. The People, 91 111. 260. 

' ' There can be no question that railway corporations 
are subject to police regulations as well as private 
citizens. The general assembly, when the public exi- 
gencies require it, has power to regulate corporations 
in their franchises so as to provide for the public 
safety. The exercise of this right in no manner inter- 
feres with or impairs the powers conferred by their 
acts of incorporation. 

Under this power, it has been held that the legisla- 
ture may require railroad corporations, notwithstand- 
ing no such right has been reserved in the charters, 
to fence their tracks, to put in cattle guards, to place 
upon their engines a bell, and to do many other things 
for the protection of life and property. This power is 
inherent in the State, and it can not part irrevocably 
with its control over that which is for the health, safety 
and welfare of society.' ' 

T. W. & W. R. W. Co. v. City of Jacksonville, 67 
111. 40 

A mechanic lien does not attach upon public school 
property. This is due to the very nature and purposes 
of school corporations. They are brought into exist- 
ence to subserve a great public policy — to give to 
every child of the State a common school education. 
And these bodies are created for the promotion of this 
great public interest, and they are clothed with such 
power only as will enable them to accomplish this pub- 
lic purpose. They are clothed with none of the usual 
powers that are granted to private corporations, nor 
were they authorized to enter into commercial pur- 
suits, but simply to perform their duties to the public. 

The education of the children in the State has been 
assumed as a duty devolving upon the government, 
and it has chosen the present school system as being 
the best adapted to that end ; and these bodies are cre- 
ated to effectuate that policy, and are essentially as 



83 

public as are municipal corporations. They are as" 
much the instruments of government, and are as essen- 
tial in carrying on its functions, as are cities, towns 
and villages." 

Board of Education v. Neidenberger, 78 111. 60. 

" Where the property of a corporation is exempted 
from taxation by its charter, the exemption amounts 
to a legislative contract, which is binding on the State, 
and such property can not afterwards be subjected to 
taxation. ' ' 

The People v. Soldiers' Home, 95 111. 561. 

Sec. 15. The military shall be in strict subordina- 
tion to the civil power. 

Sec. 16. No soldier shall, in time of peace, be quar- 
tered in any house without the consent of the owner; 
nor in time of war, except in the manner prescribed by 
law. 

Sec 17. The people have the right to assemble in a 
peaceable manner to consult for the common good, to 
make known their opinions to their representatives, 
and to apply for redress of grievances. 

Sec. 18. All elections shall be free and equal. 

Sec. 19. Every person ought to find a certain rem- 
edy in the laws for all injuries and wrongs which he 
may receive in his person, property or reputation; he 
ought to obtain, by law, right and justice freely, and 
without being obliged to purchase it, completely and 
without denial, promptly, and without delay. 

1 ' Under this broad shield of the constitution, every 
man has a right to call upon the courts to protect him 
in his property, person and reputation, without refer- 
ence to whether other persons are also suffering from 
the same cause. Many of the most serious nuisances 
which affect property and persons do affect some con- 
siderable part of the public, such as neighborhoods fre- 
quently consisting of many people, and many houses. 
Tanyards, slaughter houses, rendering establishments 
and powder houses are familiar illustrations of what 



84 

may become, and frequently are, nuisances of the most 
serious character, detrimental alike to property, per- 
son, health and even hazardous to life itself. It is 
the common knowledge of all mankind and of which 
courts will take judicial knowledge, that where human 
habitations fall within the shadow and under injurious 
influences of such like establishments, whereby the air 
is rendered impure from foul and offensive stenches, 
or where the constant uproar and turmoil of heavy and 
clanking machinery takes away all quiet, or where the 
near presence of dangerous and combustible sub- 
stances overshadows a neighborhood with constant 
fear, or where the air is constantly laden with clouds 
of dust and smoke, the property of the individual, at 
least for the purposes of occupation, is rendered less 
valuable, and when the proof shows that such injury is 
of a substantial and permanent character, then the law 
will afford a remedy to each individual so affected. ' ' 
Wylie v. Elwood, 34 111. App. 248. 

This section is not violated by a contract by an at- 
torney to prosecute a suit for an amount equal to one- 
half of the sum recovered. "Whether the agreement 
is void for champerty is an important question upon 
which the discussion and citation of authorities might 
be made almost endless. The old law upon the subject 
of barratry, champerty and maintenance, seems to 
have been founded upon the conservative English feel- 
ing that whatever is, is right, and ought not to be dis- 
turbed. A hundred years ago Justice Buller ex- 
pressed his contempt for it. It has been so pruned 
away and exceptions so grafted upon it, that there is 
nothing of substance left of it in this State, and it has 
been wholly abandoned in others.' ' 

Dunne v. Herrick, 37 111. App. 182. 

Sec. 20. A frequent recurrence (to the funda- 
mental principles of civil government is absolutely nec- 
essary to preserve the blessings of liberty. 



85 

AETICLE III. 

DISTRIBUTION OF POWERS. 

The powers of the government of this state are 
divided into three distinct departments — the legisla- 
tive, executive and judicial ; and no person, or collection 
of persons, being one of these departments, shall exer- 
cise any power properly belonging to either of the 
others, except as hereinafter expressly directed or per- 
mitted. 

"Ail political powers which the State may rightfully 
exercise at all belong, ultimately, to the people in their 
sovereign corporate capacity, which they may distrib- 
ute for purposes of government, in such manner as 
they think best, subject to the limitation, that when the 
State government is organized it shall be republican in 
form. These powers of government are, in their very 
nature, either legislative or executive. Every legiti- 
mate exercise of political power, of necessity, consists 
in the making or execution of some law. The executive 
powers are, in their nature, either judicial or minis- 
terial; hence, for convenience of administration, the 
powers of government are, by the constitution of this 
State, and that of all the others, so far as we are ad- 
vised, divided into three classes, namely: legislative, 
executive and judicial; and, by this division, are con- 
ferred respectively upon three distinct branches of the 
government, and this being a complete disposition of 
the whole, it follows, neither branch of government to 
whom these powers have been thus delegated, can exer- 
cise any of those conferred upon either of the others. 
While each department is, in theory, independent of 
the others, and must, therefore, in the first instance, 
judge of its own powers within the grant, yet, when- 
ever any property right is drawn in question, in a legal 
proceeding depending upon an alleged usurpation of 
power by either of the other departments, and not 
with respect to a matter of which such department is 
made the exclusive judge, the ultimate power of deter- 
mining the question belongs to the judiciary. It is the 
right of the legislature to pass general laws for the 



86 

government and regulation of all persons and property 
within the State, and it is made the exclusive judge of 
their fitness and propriety, so long as they do not en- 
croach upon the powers entrusted to the other depart- 
ments of the government, or interfere with vested 
rights. ' ' 

* i The legislature has the power, should it deem it ex- 
pedient, to repeal all laws not embodied in the constitu- 
tion, except such as are essential to the enforcement 
of vested rights, and, subject to the same limitation, it 
may change the forms of action and modes of proced- 
ure in courts of justice to whatever extent it may see 
fit." 

"The judicial powers of the State are exercised by 
courts established under the constitution, in conform- 
ity with the usage and principles of the common law, 
or in the manner prescribed by the legislature. ' ' 
Dodge v. Cole, 97 111. 355. 

"It has been held, that a court of equity has no 
power to try a contested election, even where the stat- 
ute has not provided a mode for contesting. Elections 
belong to the political branch of the government, 
and are beyond the control of the judicial power. It 
was not designed, when the fundamental law of the 
State was framed, that either department of govern- 
ment should interfere with or control the other, and 
it is for the political power of the State, within the 
limits of the constitution, to provide the manner in 
which elections shall be held, and the manner in which 
officers thus elected shall be qualified, and their elec- 
tions contested. And the political power of the State 
may organize municipal bodies and put them into 
operation by the force of enactment, or by election by 
the people to be thus governed, and they can provide 
the mode of reviewing the returns of all elections, to 
ascertain whether they are in accordance with the ex- 
pressed will of the people. And until the courts are 
empowered to act, by the constitution or legislative 
enactment, they must refrain from interference." 
Dickey v. Reed, 78 111. 271. 

' ' The really difficult question to the case is to deter- 
mine the bounds fixed by the constitution to the discre- 



87 

tion of the General Assembly, when that body, acting 
within other and more definitely expressed limitations, 
is complying with the constitutional mandate to form 
senatorial districts of compact territory, containing, as 
nearly as practicable, an equal number of inhabitants. 
If the statute is within those bounds, though resulting 
in inequality and injustice, it is valid, for the courts 
have no power to revise or annul an act of the legisla- 
ture which is the mere exercise of its discretionary 
power, or which rests in the legislative judgment.' ' 

"Article 3 of the constitution provides that 'the 
powers of the government of this State are divided 
into three distinct departments — the legislative, execu- 
tive and judicial; and no person, or collection of per- 
sons, being one of these departments, shall exercise 
any power properly belonging to either of the others, 
except as hereinafter expressly directed or permitted.' 
The legislative power is vested in the General Assem- 
bly, and whether or not the power to apportion the 
State into senatorial districts be deemed legislative, it 
is expressly vested in the legislative department by the 
constitution. Besides, 'no proposition is better settled 
than that a State constitution is a limitation upon the 
powers of the legislature,' and not a grant of power, 
and that the legislature possesses every power not 
delegated to some other department or to the Federal 
government, or not denied to it by the constitution of 
the State or of the United States." 

"So it will be seen that the legislature has all the 
power of the people over the apportionment of the 
State into senatorial and representative districts not 
denied to it by the constitution." 

The People v. Thompson, 155 111. 469. 

AETICLE IV. 

LEGISLATIVE DEPARTMENT. 

Sec. 1. The legislative power shall be vested in a 
general assembly, which shall consist of a senate and 
house of representatives, both to be elected by the 
people. 

"In ascertaining the powers of a state legislature, 



88 

we examine to see what are denied by the constitutions 
of the United States and of the state, whereas in inter- 
preting the constitution of the United States, we are 
obliged to find a grant of power, before it can be exer- 
cised." 

' 'The legislature of a state can pass any law not 
prohibited by its own constitution and that of the 
United States, and beyond the limitations and restric- 
tions contained in those constitutions it is as absolute, 
omnipotent, and uncontrollable as parliament. ' ' 
Mason v. Wait, 5 111. (4 Scam.) 127. 

"The question of legislative power, and its extent, 
depends on the limitations contained in the constitu- 
tion. When a State is created it is invested with com- 
plete sovereign power, unless restricted by constitu- 
tional limitation, and under our system of government 
such restrictions are written and embodied in organic 
law. Were it not for these limitations, the legislative 
power would be without restriction. When we have 
to determine whether an act is within the scope of 
legislative power, we do not look for an express delega- 
tion of the power in the fundamental law, but we look 
to see whether the general power has been limited. 
The first section of the fourth article of our constitu- 
tion vests the legislative power of the State in the Gen- 
eral Assembly. By it the full, unlimited and uncon- 
trolled legislative power was conferred, and it may be 
so exercised unless limited by other provisions of that 
instrument, or its exercise is inhibited by the Fed- 
eral constitution; and we may search in vain for any 
provision in either, prohibiting the General Assembly 
from selling or donating public property. There is no 
such inhibition. ' ' 

Harris v. Board of Supervisors, 105 111. 450. 

"A state constitution is a limitation upon the pow- 
ers of the legislature, and the legislature possesses 
every power not delegated to some other department, 
or expressly denied to it by the constitution. ' ' 
Winch v. Tobm, 107 111. 212. 

"It is also urged, that under the organic law the 
legislature have no power to make the validity of a law 



89 

depend upon a vote of the people, and as this act de- 
clares that it shall not be binding until adopted by the 
vote of the several municipal divisions as therein speci- 
fied, it does not possess the elements of a binding law. 
This question was maturely considered and fully dis- 
cussed in The People, ex ret. v. Reynolds, 5 Gilm. 1, 
and The People ex rel. The South Park Commissioners 
v. Salomon, ante, p. 37, where the conclusion was an- 
riounced that such a submission was fairly within the 
scope of the legislative power. We do not see any 
reason to review the grounds of the decisions there an- 
nounced, or to depart from the conclusion there ar- 
rived at, and must hold that they govern this question." 
Erlinger v. Boneau, 51 111. 100. 

ELECTION". 

Sec. 2. An election for members of the general as- 
sembly shall be held on the Tuesday next after the first 
Monday in November, in the year of our Lord one 
thousand eight hundred and seventy, and every two 
years thereafter, in each county, at such places therein 
as may be provided by law. When vacancies occur in 
either house, the governor, or persons exercising the 
powers of governor, shall issue writs of election to fill 
such vacancies. 

ELIGIBILITY AND OATH. 

Sec. 3. No person shall be a senator who shall not 
have attained the age of twenty-five years, or a repre- 
sentative who shall not have attained the age of twen- 
ty-one years. No person shall be a senator or a repre- 
sentative who shall not be a citizen of the United 
States, and who shall not have been for five years a 
resident of this state, and for two years next preceding 
his election a resident within the territory forming the 
district from which he is elected. No judge or clerk 
of any court, secretary of state, attorney general, 
state's attorney, recorder, sheriff, or collector of pub- 
lic revenue, member of either house of congress, or 
person holding any lucrative office under the United 
States or this state, or any foreign government, shall 



90 

have a seat in the general assembly: Provided, that ap- 
pointments in the militia, and the offices of notary pub- 
lic and justice of the peace, shall not be considered 
lucrative. Nor shall any person, holding any office of 
honor or profit under any foreign government, or 
under the government of the United States, (except 
postmasters whose annual compensation does not ex- 
ceed the sum of $300,) hold any office of honor or profit 
under the authority of this State. 

"A director of the State institution for the educa- 
tion of the deaf and dumb, appointed by the Governor 
with the advice of the Senate, holds an ' office of honor, ' 
within the meaning of the twenty-ninth section of the 
third article of the constitution, which will be vacated 
by an acceptance of an appointment as Marshal by 
authority of the United States." 

Dickson v. The People, 17 111. 191. 

Sec. 4. No person who has been, or hereafter shall 
be, convicted of bribery, perjury, or other infamous 
crime, nor any person who has been or may be a col- 
lector or holder of public moneys, who shall not have 
accounted for and paid over, according to law, all such 
moneys due from him, shall be eligible to the general 
assembly, or to any office of profit or trust in this state. 

"It is claimed that the 4th section of article 4 of 
the constitution provides that any person who has been 
a collector or holder of public moneys and shall not 
have accounted for and paid them over according to 
law, shall be ineligible to any office of profit or trust, 
and that as Whitaker was a defaulter, as a holder of 
public moneys, he was ineligible to the office, and never 
constitutionally in office, and his bond was void. This 
provision presupposes that the default shall be known 
and fixed. And the default could only be fixed by 
judicial or other legal authority. It may be that if 
such a defaulter were to be elected or appointed, and 
enter into office, he could be ousted by quo warranto. 
But so long as he holds the office his acts would be valid 
and binding. If this were not so, all receipts and 



91 

vouchers given by him as treasurer would be void, 
after he became defaulter, whether the fact was known 
or not at the time. The framers of that instrument 
never could have intended such results. Until the fact 
was properly ascertained, he, under his commission 
and oath of office, held the indicia of legal title to his 
office, and his acts were binding, and his sureties were 
liable for them until his title might be impeached by 
appropriate proceedings. ' ' 

^Caivley v. The People, 95 111. 254. 

Sec. 5. Members of the general assembly, before 
they enter upon their official duties, shall take and sub- 
scribe the following oath or affirmation: 

I do solemnly swear (or affirm) that I will support the constitution 
of the United States, and the constitution of the State of Illinois, 
and will faithfully discharge the duties of senator (or representa- 
tive) according to the best of my ability; and that I have not, 
knowingly or intentionally, paid or contributed anything, or made 
any promise, in the nature of a bribe, to directly or indirectly in- 
fluence any vote at the election at which I was chosen to fill the said 
office and have not accepted, nor will I accept or receive, directly 
or indirectly, any money or other valuable thing, from any corpora- 
tion, company or person for any vote or influence I may give or with- 
hold on any bill, resolution of appropriation, or for any other official 
act. 

This oath shall be administered by a judge of the 
Supreme or Circuit Court, in the hall of the house to 
which the member is elected, and the secretary of state 
shall record and file the oath subscribed by each mem- 
ber. Any member who shall refuse to take the oath 
herein prescribed, shall forfeit his office, and every 
member who shall be convicted of having sworn falsely 
to or of violating his said oath, shall forfeit his office, 
and be disqualified thereafter from holding any office 
of profit or trust in this state. 

APPORTIONMENT SENATORIAL. 

Sec. 6. The general assembly shall apportion the 
state every ten years, beginning with the year 1871, by 
dividing the population of the state, as ascertained by 
the federal census, by the number 51, and the quotient 
shall be the ratio of representation in the senate. The 
state shall be divided into 51 senatorial districts, each 



of which shall elect one senator, whose term of office 
shall be four years. The senators elected in the year 
of our Lord 1872, in districts bearing odd numbers, 
shall vacate their offices at the end of two years, and 
those elected in districts bearing even numbers, at the 
end of four years ; and vacancies occurring by the ex- 
piration of term, shall be filled by the election of sen- 
ators for the full term. Senatorial districts shall be 
formed of contiguous and compact territory, bounded 
by county lines, and contain, as nearly as practicable, 
an equal number of inhabitants ; but no district 
shall contain less than four-fifths of the senatorial 
ratio. Counties containing not less than the ratio and 
three-fourths, may be divided into separate districts, 
and shall be entitled to two senators, and to one addi- 
tional senator for each number of inhabitants equal to 
the ratio contained by such counties in excess of twice 
the number of said ratio. 

"It was not discretionary with the legislature 
whether it would, or not, comply with the four restric- 
tions before mentioned, upon its power, respecting the 
observance of county lines, the division of counties, 
the minimum number of inhabitants necessary to form 
a district, and the contiguity of territory in forming 
districts. Nor was it discretionary as to whether or 
not that body would, subject to said limitations, apply 
the principles of compactness of territory and approx- 
imate equality in population in making the apportion- 
ment ; but we do hold that it was a question for its final 
determination as to what approximation could or 
should be made toward perfect compactness of terri- 
tory and equality in population — and this, too, though 
treating this requirement of the constitution as manda- 
tory on the legislature. In other words, if it clearly 
appeared that in the formation of any district the re- 
quirement of compactness of territory and equality in 
population had been wholly ignored, had not been con- 
sidered or applied at all, to any extent, then the statute 
would be clearly unconstitutional. But if it has been 
considered and applied, though to a limited extent 
only, subject to the other more definitely expressed 
limitations, then the General Assembly has not tran- 



93 

scended its power, although it may have very imper- 
fectly performed its duty, and the act is valid. That 
no department of the State government has any discre- 
tion as to whether or not it will perform a constitu- 
tional duty, and that constitutional provisions are to 
be treated as mandatory, rather than as directory, do 
not militate against the position here assumed, for 
however peremptorily the performance of the duty 
may be enjoined by the constitution, it cannot be en- 
forced, or the manner of its performance be revised, 
by the courts, in a matter committed by the constitu- 
tion to the final decision of such department. (Cooley's 
Const. Lim. 78-83).. The same eminent authority 
above quoted from says: i Where the power which is 
exercised is legislative in its character, the courts can 
enforce only those limitations which the constitution 
imposes, and not those implied restrictions which, rest- 
ing in theory, only, the people have been satisfied to 
leave to the judgment, patriotism and sense of justice 
of their representatives.' Cooley's Const. Lim. 129." 
The People v. Thompson, 155 111. 476. 

Note. By the adoption of minority representation, sections 7 and 
8, of this article, cease to be a part of the constitution. Under sec- 
tion 12 of the schedule and the vote of adoption, the following 
section relating to minority representation is substituted for said 
sections: 

MINORITY REPRESENTATION. 

Secs. 7 and 8. The house of representatives shall 
consist of three times the number of the members of 
the senate, and the term of office shall be two years. 
Three representatives shall be elected in each sena- 
torial district at the general election in the year of 
our Lord 1872, and every two years thereafter. In all 
elections of representatives aforesaid, each qualified 
voter may cast as many votes for one candidate as 
there are representatives to be elected, or may dis- 
tribute the same, or equal parts thereof, among the 
candidates, as he shall see fit ; and the candidates high- 
est in votes shall be declared elected. 

TIME OF MEETING AND GENEKAL RULES. 

Sec. 9. The sessions of the general assembly shall 



94 

commence at 12 o'clock noon, on the Wednesday next 
after the first Monday in January, in the year next 
ensuing the election of members thereof, and at no 
other time, unless as provided by this constitution. A 
majority of the members elected to each house shall 
constitute a quorum. Each house shall determine the 
rules of its proceedings, and be the judge of the elec- 
tion, returns and qualifications of its members; shall 
choose its own officers; and the senate shall choose a 
temporary president to preside when the lieutenant 
governor shall not attend as president or shall act as 
governor. The secretary of state shall call the house 
of representatives to order at the opening of each new 
assembly, and preside over it until a temporary pre- 
siding officer thereof shall have been chosen and shall 
have taken his seat. No member shall be expelled by 
either house except by a vote of two-thirds of all the 
members elected to that house, and no member shall be 
twice expelled for the same offense. Each house may 
punish, by imprisonment, any person not a member, 
who shall be guilty of disrespect to the house by dis- 
orderly or contemptuous behavior in its presence. But 
no such imprisonment shall extend beyond twenty-four 
hours at one time, unless the person shall persist in 
such disorderly or contemptuous behavior. 

Sec. 10. The doors of each house, and of commit- 
tees of the whole, shall be kept open, except in such 
cases as, in the opinion of the house, require secrecy. 
Neither house shall, without the consent of the other, 
adjourn for more than two days, or to any other place 
than that in which the two houses shall be sitting. 
Each house shall keep a journal of its proceedings, 
which shall be published. In the senate at the request 
of two members, and in the house at the request of five 
members, the yeas and nays shall be taken on any ques- 
tion, and entered upon the journal. Any two mem- 
bers of either house shall have liberty to dissent from 
and protest, in respectful language, against any act or 
resolution which they think injurious to the public or 



95 

to any individual, and have the reasons of their dissent 
entered upon the journals. 

' ' Under Section 13 of Article 4 of the Constitution of 
1848, the governor issued a proclamation adjourning 
the legislature. In doing so he claimed that the con- 
tingency therein provided for had arisen, and that he 
was authorized to act. And whether this be so or not, 
when we see, from the absence of all entries upon the 
journals, that the two houses ceased to hold further 
sessions, the members drew their pay, returned to 
their homes, and the halls were closed, this apparent 
acquiescence on the part of the members of the two 
bodies, to my mind, is satisfactory evidence that they 
designed to terminate the session. By this course of 
action it would unquestionably seem that they had de- 
termined to cease to meet, and whatever weight they 
may have attached to the governor's proclamation, 
they did in fact adjourn, or, at least, ceased to hold 
their daily sessions, according to the usual course of 
such bodies, and this cessation was so far as the jour- 
nals show, without day. And it seems that it was de- 
signed to adopt the act of the governor. Suppose the 
governor, without any pretense of a disagreement, had 
come into the houses, and had declared them adjourned 
sine die, and the speakers had so announced, and it had 
been entered on the journals of each house that on that 
day the general assembly had so adjourned and the 
members had dispersed and business had ceased, would 
any person contend that the session had not been ter- 
minated notwithstanding the want of a joint resolu- 
tion?" 

The People v. Hatch, 33 111. 127. 

"A majority of all the members elected to either 
branch of the general assembly, must concur in the 
final passage of a bill. This is indispensable to its be- 
coming a law. Without it, the act has no more force 
than the paper upon which it is written. The vote 
must be taken by ayes and noes. The constitution pre- 
scribes this as the test, by which to determine whether 
the requisite number of members vote in the affirma- 
tive. The vote must also be entered on the journal. 



96 

The office of the journal is to record the proceedings 
of the house, and authenticate and preserve the same. 
It must appear on the face of the journal, that the bill 
passed by the constitutional majority. These direc- 
tions are all clearly imperative. They are expressly 
enjoined by the fundamental law, and cannot be dis- 
pensed with by the legislature. There are some other 
requirements equally essential, and that can no more 
be disregarded. A bill must be signed by the speakers 
of both houses, and then presented to the governor for 
his action. If he consents, his approval is indorsed on 
the bill ; if he returns it with objections, it must again 
be passed through each house by a majority of all its 
members. If he does not return the bill within ten 
days, and the legislature still remains in session, it 
becomes a law without his signature. " 
Spangler v. Jacoby, 14 111. 298. 

A transcript from the journal record of either house 
of the legislature, of its proceedings, properly certi- 
fied, is admissible in evidence to prove the facts therein 
recorded. It is not necessary to produce the original 
minutes made by the officers of the respective houses, 
or copies thereof. 

The law does not require that the officers of the Gen- 
eral Assembly shall sign the record of the proceedings 
of either house, or that the copying clerks shall certify 
to the accuracy of their work, in order to make the 
same admissible as evidence. 

Miller v. Goodwin, 70 111. 659. 

STYLE OF LAWS AND PASSAGE OF BILLS. 

Sec. 11. The style of the laws of this state shall be : 
* 'Be it enacted by the People of the State of Illinois, 
represented in the General Assembly." 

Sec. 12. Bills may originate in either house, but 
may be altered, amended or rejected by the other; and 
on the final passage of all bills, the vote shall be by 
yeas and nays, upon each bill separately, and shall be 
entered upon the journal; and no bill shall become a 
law without the concurrence of the majority of the 
members elected to each house. 



97 

"The whole number of senators elected to and com- 
posing the senate being 50, at least 26 of its members 
must concur in the final passage of a bill. 

"This is indispensable to its becoming a law. The 
vote must be taken by yeas and nays, and entered upon 
the journal. It must appear on the face of the journal 
that the bill passed by the constitutional majority; and 
it is competent to show from the journals of either 
branch of the legislature, that a particular act was not 
passed in the mode prescribed by the constitution, and 
thus defeat its operation altogether. ' ' 

The People v. DeWolf, 62 111. 255. 

Sec. 13. Every bill shall be read at large on three 
different days, in each house ; and the bill and all 
amendments thereto shall be printed before the vote is 
taken on its final passage; and every bill, having 
passed both houses, shall be signed by the speakers 
thereof. No act hereafter passed shall embrace more 
than one subject, and that shall be expressed in the 
title. But if any subject shall be embraced in an act 
which shall not be expressed in the title, such act shall 
be void only as to so much thereof as shall not be so 
expressed ; and no law shall be revived or amended by 
reference to its title only, but the law revived, or the 
section amended, shall be inserted at length in the new 
act. And no act of the general assembly shall take 
effect until the first day of July next after its passage, 
unless, in case of emergency, (which emergency shall 
be expressed in the preamble or body of the act), the 
general assembly shall, by a vote of two-thirds of all 
the members elected to each house, otherwise direct. 

"By giving effect to this provision, no portion of a 
bill not germane to its general objection, or not ex- 
pressed in the title when passed through the houses, 
could acquire the force of a law. Only the portions of a 
bill expressed in the title when passed are constitution- 
ally adopted. This being so, it does not matter what 
title might be adopted after its passage, to designate 
the law. The title adopted after the passage of the 
bill is no part of the law, nor does it enlarge, limit or 



98 

control the law. The title to a bill is an essential part 
of the bill, and, under the constitution, every bill must 
have a title, and such title must truly state the object 
of the bill." 

Binz v. Weber, 81 111. 290. 

The act entitled "An act to enable the corporate 
authorities of two or more towns, for park purposes, 
to issue bonds, etc.," does not violate this section of 
the constitution as embracing more than one subject 
or matter not expressed in the title. The body of the 
act is germane to the title of the bill. 
People v. Brislin, 80 111. 433. 

"We have often held that the provision of the con- 
stitution here claimed to be violated, does not require 
that the title to the act shall set forth a detailed state- 
ment, or an index or abstract of its contents, but that it 
will be sufficient if the title be comprehensive enough 
to reasonably indicate the several objects which the 
statute assumes to effect. When a general purpose is 
declared, the means by which to accomplish that pur- 
pose are presumed to be intended as necessary inci- 
dents ' ' 

' The People v. Hazelwood, 116 111. 327. 

"As we have seen, the constitution provides that 
where a subject is embraced in an act not expressed in 
its title, 'the act shall be void only as to so much there- 
of as shall not be so expressed. ' Therefore, although 
a portion of the statute under consideration is uncon- 
stitutional, it does not follow that the court is author- 
ized to declare its other provisions void, if they are 
separable from the void provisions, unless it shall ap- 
pear that all of the provisions of the act are so de- 
pendent on each other, operating together for the same 
purpose, or are otherwise so connected together in 
meaning, that it can not be presumed that the legisla- 
ture would have passed the one without the other pro- 
vision. When the constitutional and unconstitutional 
provisions are distinct and separable, the valid provis- 
ions may stand as though the invalid provision had 
not been introduced. ' ' 

Bonner sberger v. Prendergast, 128 111. 234. 



If the act embraces two subjects and both are ex- 
pressed in the title, the entire act mnst be declared 
void, as in that case the proviso that if any subject is 
embraced in the act which is not expressed in the title 
the act shall be void only as to so much as is not so 
expressed, can have no application. If two subjects 
are both embraced in the act and expressed in the title, 
we can not only elect between them so as to preserve 
one and reject the other, but the entire act must fall 
by reason of being in contravention of the constitu- 
tional limitation. If the objection, however, is only 
that the act embraces several subjects of which but one 
is expressed in the title, the subjects not expressed 
may be rejected, and the act, so far as it relates to the 
subject expressed in the title may be held to be valid.' * 
The People v. Nelson, 133 111. 577. 

' ' The fact that an act or statute has received the sig- 
natures of the speakers of both houses and the ap- 
proval of the governor, is prima facie evidence of its 
constitutional passage and validity. But such evi- 
dence may be overcome by showing from the journals 
that the act was not passed in the mode prescribed in 
the constitution." 

I. C. R. R. Co. v. People, 143 111. 434. 

PKIVILEGES AND DISABILITIES. 

Sec. 14. Senators and representatives shall, in all 
cases, except treason, felony or breach of the peace, 
be privileged from arrest during the session of the 
general assembly, and in going to and returning from 
the same ; and for any speech or debate in either house, 
they shall not be questioned in any other place. 

Sec. 15. No person elected to the general assembly 
shall receive any civil appointment within this state 
from the governor, the governor and senate, or from 
the general assembly, during the term for which he 
shall be elected; and all such appointments and all 
votes given for any such members for any such office 
or appointment, shall be void; nor shall any member 
of the general assembly be interested, either directly 



100 

or indirectly, in any contract with the state, or any 
county thereof, authorized by any law passed during 
the term for which he shall have been elected, or 
within one year after the expiration thereof. 

PUBLIC MONEYS AND APPROPRIATIONS. 

Sec. 16. The general assembly shall make no ap- 
propriation of money out of the treasury in any 
private law. Bills making appropriations for the pay 
of members and officers of the general assembly, and 
for the salaries of the officers of the government, shall 
contain no provision on any other subject 

The manifest intention of section 16 was to make 
the subject of appropriations for the pay of the mem- 
bers and officers of the legislature, and for the salaries 
of the officers of the government, a separate and dis- 
tinct subject for legislative action. In a bill making 
appropriations for those objects, every provision is 
unconstitutional which proposes to do anything be- 
sides making such appropriations. ' ' 

Ritchie v. The People, 155 111. 120. 

Sec. 17. No money shall be drawn from the treas- 
ury except in pursuance of an appropriation made by 
law, and on the presentation of a warrant issued by 
the auditor thereon; and no money shall be diverted 
from any appropriation made for any purpose, or 
taken from any fund whatever, either by joint or 
separate resolution. The auditor shall, within 60 days 
after the adjournment of each session of the general 
assembly, prepare and publish a full statement of all 
money expended at such session, specifying the amount 
of each item, and to whom and for what paid. 

" Under this clause of the constitution it is plain 
that the plaintiff is entitled to no pay out of the treas- 
ury, unless an appropriation has been made by law for 
that purpose. And it is also true, that while the act 
creating the Commission of Claims provides for the 
appointment of a bailiff, and provides that he shall 



101 

receive $3 per day, the act contains no provision what- 
ever appropriating any money for the payment of the 
bailiff." 

Pavey v. Utter, 132 111. 490. 

Sec. 18. Each general assembly shall provide for 
all the appropriations necessary for the ordinary and 
contingent expenses of the government until the ex- 
piration of the first fiscal quarter after the adjourn- 
ment of the next regular session, the aggregate amount 
of which shall not be increased without a vote of two- 
thirds of the members elected to each house, nor exceed 
the amount of revenue authorized by law to be raised 
in such time; and all appropriations, general or 
special, requiring money to be paid out of the state 
treasury, from funds belonging to the state, shall end 
with such fiscal quarter : Provided, the state may. to 
meet casual deficits or failures in revenues, contract 
debts, never to exceed in the aggregate $250,000; and 
moneys thus borrowed shall be applied to the purpose 
for which they were obtained, or to pay the debt thus 
created, and to no other purpose; and no other debt, 
except for the purpose of repelling invasion, suppress- 
ing insurrection, or defending the state in war, (for 
payment of which the faith of the state shall be 
pledged,) shall be contracted, unless the law author- 
izing the same shall, at a general election, have been 
submitted to the people, and have received a majority 
of the votes cast for members of the general assembly 
at such election. The general assembly shall provide 
for the publication of said law for three months at 
least before the vote of the people shall be taken upon 
the same ; and provision shall be made, at the time, for 
the payment of the interest annually, as it shall accrue, 
by a tax levied for the purpose or from other sources 
of revenue; which law, providing for the payment or 
such interest by such tax, shall be irrepealable until 
such debt be paid: And, provided, further, that the 
law levying the tax shall be submitted to the people 
with the law authorizing the debt to be contracted. 



102 

"By a well settled construction of this provision of 
the constitution, all appropriations, whether general 
or special when otherwise unlimited, will continue in 
force and be available for the purpose for which they 
were made until the expiration of the first fiscal quar- 
ter after the adjournment of the next regular session 
of the legislature at which time all appropriations 
must lapse, and cease to be of any validity.'' 
The People v. Swigert, 107 111. 500. 

Sec. 19. The general assembly shall never grant or 
authorize extra compensation, fee or allowance to any 
public officer, agent, servant or contractor, after serv- 
ice has been rendered or a contract made, nor author- 
ize the payment of any claim, or part thereof, here- 
after created against the state under any agreement 
or contract made without express authority of law; 
and all such unauthorized agreements or contracts 
shall be null and void ; Provided, the general assembly 
may make appropriations for expenditures incurred in 
suppressing insurrection or repelling invasion. 

"We must, then, inquire, were these alleged agree- 
ments or contracts made 'with express authority of 
law?' And it has just been shown, that in order that 
this shall be answered in the affirmative, it must ap- 
pear that each substantial thing required by the law to 
be done in the making of such agreements or contracts, 
was done in the manner and order therein required. ' ' 
Dement v. Rohker, 126 111. 194. 

Sec. 20. The state shall never pay, assume or be- 
come responsible for the debts or liabilities of, or in 
any manner give, loan or extend its credit to or in aid 
of any public or other corporation, association or in- 
dividual. 

PAY OF MEMBERS. 

Sec. 21. The members of the general assembly shall 
receive for their services the sum of $5 per day, during 
the first session held under this constitution, and 10 



103 

cents for each mile necessarily traveled in going to 
and returning from the seat of government, to be com- 
puted by the auditor of public accounts ; and thereafter 
such compensation as shall be prescribed by law, and 
no other allowance or emolument, directly or indirectly, 
for any purpose whatever, except the sum of $50 per 
session to each member, which shall be in full for post- 
age, stationery, newspapers and all other incidental 
expenses and perquisites ; but no change shall be made 
in the compensation of members of the general as- 
sembly during the term for which they may have been 
elected. The pay and mileage allowed to each member 
of the general assembly shall be certified by the 
speaker of their respective houses, and entered on the 
journals and published at the close of each session. 

\ SPECIAL LEGISLATION PEOHIBITED. 

Sec. 22. The general assembly shall not pass local 
or special laws in any of the following enumerated 
cases, that is to say : for 

Granting divorces; 

Changing the names of persons or places; 

Laying out, opening, altering and working roads or 
highways ; 

Vacating roads, town plats, streets, alleys and public 
grounds ; 

Locating or changing county seats; 

Eegulating county and township affairs; 

Eegulating the practice in courts of justice; 

Eegulating the jurisdiction and duties of justices 
of the peace, police magistrates and constables; 

Providing for changes of venue in civil and criminal 
cases ; 

Incorporating cities, towns or villages, or changing 
or amending the charter of any town, city or village; 

Providing for the election of members of the board 
of supervisors in townships, incorporated towns or 
cities ; 

Summoning and impaneling grand or petit juries ; 

Providing for the management of common schools; 



104 

Begulating the rate of interest on money; 

The opening and conducting of any election, or 
designating the place of voting; 

The sale or mortgage of real estate belonging to 
minors or others under disability; 

The protection of game or fish ; 

Chartering or licensing ferries or toll bridges; 

Remitting fines, penalties or forfeitures; 

Creating, increasing or decreasing fees, percentage 
or allowances of public officers, during the term for 
which said officers are elected or appointed; 

Changing the law of descent; 

Granting to any corporation, association or individ- 
ual the right to lay down railroad tracks, or amending 
existing charters for such purpose; 

Granting to any corporation, association or individ- 
ual any special or exclusive privilege, immunity or 
franchise whatever. 

In all other cases where a general law can be made 
applicable, no special law shall be enacted. 

The act in force July 1, 1872, commonly known as 
the " Mayors bill" was neither local nor special. It 
applies, in general terms, to all the cities in the State. 
Whether there may be many or few to whom its pro- 
visions will be of any practical force, is not the ques- 
tion. As was observed in McAunich v. The M. and 
M. R. R. Co. 20 la. 338: "These laws are general 
and uniform, not because they operate upon every 
person in the State, for they do not, but because every 
person who is brought within the relations and cir- 
cumstances provided for, is affected by the laws. 
They are general and uniform in their operation upon 
all persons in the like situation, and the fact of their 
being general and uniform, is not affected by the num- 
ber of those within the scope of their operation." 

The fact that the act is limited as to the time of its 
duration, does not make it a local or special act, agree- 
ably to any definition of such acts with which we are 
familiar. "Private or special statutes,' ' says Sedg- 
wick, in his work on Statutory and Constitutional 
Law, 30, "relate to certain individuals, or particular 



105 

classes of men." In Smith on Constitutional Con- 
struction, it is said: "The general description of 
public acts is, that they relate to or concern the in- 
terests of the public at large, or relate to a general 
genus in relation to things, and private acts relate to 
private individuals, or an individual only, or which 
concern a particular species of such general genus or 
thing," p. 913 sec. 795; and again, "It has been said, 
that the distinction between public and private stat- 
utes is this: a general or public act is a universal 
rule that regards the whole community, but special or 
private acts are rather exceptions, than rules, being 
those which operate upon private persons and private 
concerns. It is not necessary, however, in order to 
constitute a statute a public act, that it should be 
equally applicable to all parts of the State. It is 
sufficient, if it extends to all persons doing or omitting 
to do an act within the territorial limits described in 
the statute." 

i i The distinction, then, seems plain — a local or special 
statute is limited in the objects to which it applies ; a 
temporary statute is limited merely in its duration, 
and, necessarily, a local or special law may be per- 
petual, or a general law may be temporary. This, 
therefore, is a temporary general law, and not within 
the prohibition of the section referred to." 
The People v. Wright, 70 111. 398-399. 

In construing these provisions of the constitution 
(those relating to education) this court has held "that 
there is no limitation in the constitution as to the 
agencies the State shall adopt in providing this sys- 
tem of free schools, and that the General Assembly 
has full power to select or prescribe the agencies by 
which school taxes shall be levied, collected, held and 
disbursed for school purposes, and that all laws, 
whether in city charters or elsewhere designed to af- 
fect free schools, may be regarded as school laivs — as 
part of the law intended to provide a system of free 
schools; and that sec. 22, art. 4, as to the power of 
passing special laws, relates merely to the manage- 
ment of common schools, that is, to the conduct of 
common schools in imparting instruction, and does 



106 

not relate to the matter of providing the necessary 
funds for their support.' ' 

Fuller v. Heath, 89 111. 313. 

"The act of 1881, to amend certain sections of the 
act relating to the election of justices of the peace, 
creating each county in the State, except Cook county, 
a district, and making two districts of Cook county, 
and limiting the jurisdiction of such officers within 
such districts, is in contravention of that part of 
the constitution which requires that the jurisdiction 
of justices of the peace shall be uniform, and also of 
that part which prohibits the passage of any local or 
special laws regulating the jurisdiction of justices of 
the peace, such amendment operating to change the 
preexisting law on the subject only in Cook county." 
The People v. Meech, 101 111. 200. 

"The question presented by this record is the con- 
stitutionality of an act of the legislature of this State, 
commonly known as the "Election law," approved 
June 19, 1885, in force July 1, 1885, and entitled "An 
act regulating the holding of elections, and declaring 
the result thereof, in cities, villages and incorporated 
towns in this State. ' ' 

It is claimed that the act in question is such a local 
or special law, as is prohibited by section 22 of article 
4 of the constitution. That section provides, that the 
General Assembly shall not pass local or special laws 
for certain specified objects, and among them for "the 
opening and conducting of any election, or desig- 
nating the place of voting.' ' The feature of the act, 
which is especially insisted upon as showing it to be 
local and special in its character, is the provision 
which is made for submitting the question of its adop- 
tion to the votes of the electors in any city, village 
or town. It is charged, that the act was passed for 
the benefit of the city of Chicago, and that, having 
been adopted by that city and by the town of Lake, 
in the county of Cook, but not elsewhere, it is in force 
only in one locality. It is said, that, inasmuch as it 
operates solely and exclusively upon the particular 
city, village or town, which adopts it, and not upon all 



107 

the cities, villages and towns in the State, it is special 
and local in its application, and therefore forbidden 
by the constitntion. ' ' 

' 'Laws, which depend for their operation upon the 
votes of the people, have sometimes been held to be 
unconstitutional, as involving a delegation of legis- 
lative authority. In this State, however, they have 
been held to be valid.' ' 

The People v. Hoffman, 116 111. 594. 

"We have been referred to more than fifty special 
charters granted by the legislature of this State, in 
the years 1853, 1854, 1855, 1857, 1859, 1861, 1865, 1867 
and 1869, to gas companies in various cities and towns 
in the State, each one of which confers the exclusive 
privilege of laying gas pipes in the streets for a num- 
ber of years. But when the constitution of 1870 was 
adopted, it provided, in section 22 of article 4, that 
the general assembly should pass no local or special 
laws for 'granting to any corporation, association or 
individual any special or exclusive privilege, immun- 
ity or franchise whatever, ' and, in section 1 of article 
XI, that 'no corporation shall be created by special 
laws, * * * but the general assembly shall pro- 
vide, by general laws, for the organization of all cor- 
porations hereafter to be created. 

Manifestly the constitution of 1870 reversed the 
old policy of granting exclusive privileges to gas com- 
panies. After 1870 the public policy of the State was 
against the granting of exclusive privileges to cor- 
porations of any kind. The general incorporation act 
of 1872 was passed in pursuance of section 1 of article 
XI. The prohibition of special charters granting ex- 
clusive privileges, and the authorization of incorpora- 
tions under a general law, followed by the passage of 
such a law, put the people of this State on record as 
being opposed to the creation of monopolies of all 
kinds." 

The People v. Chicago Gas Trust Co., 130 111. 
296. 

"That the act is general in its terms, authorizing 
the division into installments, of special assessments 



108 

in any city, incorporated town or village within the 
State, is not questioned. And the question presented 
is, whether the limitation contained in the proviso, 
by which cities of fifty thousand or more inhabitants 
are excluded from the operation of the act, unless the 
assessment aggregates $15,000 or more, renders the 
act unconstitutional. The purpose of the constitu- 
tional provision was to correct the evils of special 
legislation generally, and to prevent, as far as prac- 
ticable, dissimilarity in the organization and powers 
of cities, towns and villages, and to bring about uni- 
formity in the charters of the municipalities of the 
State. It is evident, however, that the framers of 
the constitution, recognizing the dissimilarity in con- 
dition of the different municipalities, did not con- 
template absolute uniformity. While it was provided 
that a general incorporation law was to be passed, it 
was within the contemplation of the constitution that 
cities, towns and villages might thereafter exist under 
dissimilar charters previously granted. And so we 
have held in numerous cases, that the general act 
for the incorporation of cities, towns and villages 
was not unconstitutional, although applicable to none 
of the cities, towns, or villages of the State, until 
adopted by the same, and leaving it optional to adopt, 
the general law or not, as the municipality might de- 
termine. ' ' 

Cummings v. City of Chicago, 144 111. 565. 

1 'We have so repeatedly held that a law may be 
general and yet be operative in a single place or 
places where the conditions necessary to its operation 
exist, that, if it were not abandoned, discussion of the 
question would be unnecessary.' ' 

Trausch v. County of Cook, 147 111. 536. 

Sec. 23. The general assembly shall have no power 
to release or extinguish, in whole or in part, the in- 
debtedness, liability, or obligation of any corporation 
or individual to this state or to any municipal cor- 
poration therein. 



109 
IMPEACHMENT. 

Sec. 24. The house of representatives shall have 
the sole power of impeachment ; but a majority of all 
the members elected must concur therein. All im- 
peachments shall be tried by the senate; and when 
sitting for that purpose, the senators shall be upon 
oath, or affirmation, to do justice according to law 
and evidence. When the governor of the state is 
tried, the chief justice shall preside. No person shall 
be convicted without the concurrence of two-thirds of 
the senators elected. But judgment, in such cases, 
shall not extend further than removal from office, and 
disqualification to hold any office of honor, profit or 
trust under the government of this state. The party, 
whether convicted or acquitted, shall, nevertheless, be 
liable to prosecution, trial, judgment and punishment 
according to law. 

MISCELLANEOUS. 

Sec. 25. The general assembly shall provide, by 
law, that the fuel, stationery and printing paper fur- 
nished for the use of the state; the copying, printing, 
binding and distributing the laws and journals, and 
all other printing ordered by the general assembly, 
shall be let by contract to the lowest responsible bid- 
der; but the general assembly shall fix a maximum 
price; and no member thereof, or other officer of the 
state, shall be interested, directly or indirectly, in 
such contract. But all such contracts shall be subject 
to the approval of the governor, and if he disapproves 
the same there shall be a re-letting of the contract, in 
such manner as shall be prescribed by law. 

Sec. 26. The State of Illinois shall never be made 
defendant in any court of law or equity. 

It was contended that the Trustees of Schools of 
the township for whose use the land was held in trust 
by the State, for common school purposes, cannot 
sue; but that the State alone can sue, or that she 
should in some manner be a party to the bill. The 



110 

State could not be made a party defendant nor com- 
pelled to sue. Her sovereignty would protect her 
from being coerced to prosecute or defend. 
Moore v. School Trustees, 19 111. 85. 

"Property belonging to the State is not subject 
to special assessment or special taxation by cities and 
villages for making local improvements. Under sec- 
tion 26 of article 4 of the constitution the State can 
not be made a party defendant in any court of law or 
equity. A proceeding to confirm a special tax for a 
public improvement is a suit at law, although a pro- 
ceeding in rem." 

"The State is a sovereign, and can not be sued by 
her citizens, in her own courts, without her permis- 
sion. " "It is an established principle of juris- 
prudence in all civilized nations that the sovereign can- 
not be sued in its own courts, or in any other, without 
its consent and permission." "The obligations of a 
State rest for their performance upon its honor and 
good faith, and can not be made the subjects of 
judicial cognizance, unless the State consents to be 
sued, or comes itself into court/ ' In Moore v. School 
Trustees, 19 111. 83, we said: "The State could not 
be made a party defendant, nor compelled to sue. 
Her sovereignty would protect her from being co- 
erced to prosecute or defend." 

In re City of Mt. Vernon, 147 111. 359-365. 

Sec. 27. The general assembly shall have no power 
to authorize lotteries or gift enterprises for any pur- 
pose, and shall pass laws to prohibit the sale of lot- 
tery or gift enterprise tickets in this State. 

Sec. 28. No law shall be passed which shall oper- 
ate to extend the term of any public officer after his 
election or appointment. 

"The general Incorporation Act of 1872 for cities 
and villages, in continuing in office the mayor and 
aldermen who were elected prior to the adoption of 
that act until their successors shall be elected and 
qualified, is not repugnant to section 28, article 4, of 



Ill 

the constitution, which provides, "no law shall be 
passed which shall operate to extend the term of office 
of any public officer after his election or appoint- 
ment." While it is true such officers may have been 
elected for a definite time, they were also elected to 
hold their offices until their successors should be 
elected and qualified.' ' 

Crook v. The People, 106 111. 238. 

Sec. 29. It shall be the duty of the general as- 
sembly to pass such laws as may be necessary for the 
protection of operative miners, by providing for ven- 
tilation, when the same may be required, and the con- 
struction of escapement shafts, or such other appli- 
ances as may secure safety in all coal mines, and to 
provide for the enforcement of said laws by such 
penalties and punishments as may be deemed proper. 

"The above section which enjoins legislation in the 
interest of miners, means legislation for the personal 
safety of miners, and relates only to the enactment 
of police regulations to promote that end. ' ' 

It is not competent for the legislature, under the 
constitution, to single out owners and operators of 
coal mines, and provide that they shall bear burdens 
not imposed on other owners of property or employ- 
ers of labor, and prohibit them from making contracts 
which it is competent for other owners of property or 
employers of labor to make. Such legislation can not 
be sustained as an exercise of the police power.' ' 
Millett v. The People, 117 111. 294. 

Sec. 30. The general assembly may provide for 
establishing and opening roads and cartways, con- 
nected with a public road, for private and public use. 

Sec. 31. The general assembly may pass laws 
permitting the owners of lands to construct drains, 
ditches and levees for agricultural, sanitary or mining 
purposes, across the lands of others, and provide for 
the organization of drainage districts and vest the 
corporate authorities thereof, with power to construct 



112 

and maintain levees, drains and ditches, and to keep 
in repair all drains, ditches and levees heretofore con- 
structed under the laws of this State, by special as- 
sessments upon the property benefited thereby. 

[This section was submitted to the voters at the election in 
November, 1878 as an amendment, was adopted and became a part 
of the constitution.] 

This section as originally adopted in 1870 was as 
follows : 

"Section 31. The General Assembly may pass 
laws permitting the owners or occupants of lands to 
construct drains and ditches, for agricultural and 
sanitary purposes, across the lands of others." 

' ' The words in the amendment to section 31, article 
4, of the constitution, 'provide for the organization 
of drainage, districts,' etc., are to be referred to the 
General Assembly, and not to the owners of lands, — 
in other words, the General Assembly may 'provide 
for the organization of drainage districts, and vest 
the corporate authorities thereof with power, etc.; 
and there is not any limitation or restriction upon the 
legislature as to the agencies to be used in the crea- 
tion of such corporations, and it may make the finding 
of certain facts by the county court authorize the 
formation of such a district and corporation. ' ' 
Blake v. The People, 109 111. 504. 

"Under the amendment of the constitution (section 
31, article 4,) adopted in November, 1878, the legisla- 
ture is expressly empowered to 'provide for the 
organization of drainage districts, and vest the cor- 
porate authorities thereof with power to construct 
and maintain levees, drains and ditches, ' etc. This 
general grant of power being unrestricted in terms, 
carries with it, by necessary implication, all other 
powers necessary to make the general grant effective, 
and to accomplish the results intended. As to the 
mode in which this power is to be exercised, the legis- 
lature is left the sole judge.' ' 

Kilgour v. Drainage Commissioners, 111 111. 
350. 



113 

"In view of the construction given the provisions 
of the constitution prior to the amendment of 1878, 
it became necessary to invest the legislature with 
power to authorize the formation of drainage dis- 
tricts with power to special assessment of property 
benefited, and the people, by the amendment adopted 
in 1878, (art. 4, sec. 31,) granted such power, without 
limitation as to the mode of its exercise. Such gen- 
eral grant carried with it, by necessary implication, 
all other powers necessary to make the grant effect- 
ive. (Kilgour v. Drainage Comrs., Ill 111. 342). 
There is no limitation upon the legislature as to the 
mode of forming drainage districts, or as to the 
agencies to be employed in their creation. (Huston 
v. Clark, 112 111. 344; Owners of Land v. People, 113 
id. 296; Village of Hyde Park v. Spencer, 118 id. 446.) 
Thus the legislature may give the County Court power 
to form the districts, or vest the power in the highway 
commissioners of the town, or in persons selected 
from two boards of highway commissioners, (as in the 
case of the formation of union districts,) or county 
commissioners of the county, or corporate authorities 
of towns, cities and villages, (Blake v. People, 109 111. 
504, and cases supra,) or the legislature may create 
another corporation within either, and define its pow- 
ers, and determine the agencies through and by which 
its powers may be exercised. (Wilson v. Board of 
Trustees, 133 111. 433.) The mode and agencies 
through and by which the special assessment is to be 
imposed is left wholly to legislative discretion, and 
when it has chosen and designated the agency its 
selection is conclusive. 

The People v. Drainage Comrs., 143 111. 421. 

Sec. 32. The general assembly shall pass liberal 
homestead and exemption laws. 

Sec. 33. The general assembly shall not appro- 
priate out of the state treasury, or expend on account 
of the new capitol grounds, and construction, comple- 
tion, and furnishing of the state house, a sum exceed- 
ing, in the aggregate, $3,500,000, inclusive of all ap- 
propriations heretofore made, without first submit- 



114 

ting the proposition for an additional expenditure to 
the legal voters of the state, at a general election; 
nor unless a majority of all the votes cast at such 
election shall be for the proposed additional expendi- 
ture. 

Sec. 34. The general assembly shall have power, 
subject to the conditions and limitations hereinafter 
contained to pass any law (local, special or general) 
providing a scheme or charter of local municipal gov- 
ernment for the territory now or hereafter embraced 
within the limits of the city of Chicago. The law or 
laws so passed may provide for consolidating (in 
whole or in part) in the municipal government of the 
city of Chicago, the powers now vested in the city, 
board of education, township, park and other local 
governments and authorities having jurisdiction con- 
fined to or within said territory, or any part thereof, 
and for the assumption by the city of Chicago of the 
debts and liabilities (in whole or in part) of the gov- 
ernments or corporate authorities whose functions 
within its territory shall be vested in said city of Chi- 
cago, and may authorize said city, in the event of its 
becoming liable for the indebtedness of two or more 
of the existing municipal corporations lying wholly 
within said city of Chicago, to become indebted to an 
amount (including its existing indebtedness and the 
indebtedness of all municipal corporations lying wholly 
within the limits of said city and said city's propor- 
tionate share of the indebtedness of said county and 
sanitary district which share shall be determined in 
such manner as the general assembly shall prescribe) 
in the aggregate not exceeding iive per centum of the 
full value of the taxable property within its limits, 
as ascertained by the last assessment either for State 
or municipal purposes previous to the incurring of 
such indebtedness, (but no new bonded indebtedness, 
other than for refunding purposes, shall be incurred 
until the proposition therefor shall be consented to 
by a majority of the legal voters of said city voting on 



115 

the question at any election, general, municipal or 
special) ; and may provide for the assessment of prop- 
erty and the levy and collection of taxes within said 
city for corporate purposes in accordance with the 
principals of equality and uniformity prescribed by 
this Constitution; and may abolish all offices, the 
functions of which shall be otherwise provided for; 
and may provide for the annexation of territory to or 
disconnection of territory from said city of Chicago 
by the consent of a majority of the legal voters (voting 
on the question at any election general, municipal or 
special) of the said city and of a majority of the 
voters of such territory, voting on the question at any 
election, general, municipal or special; and in case 
the general assembly shall create municipal courts in 
the city of Chicago it may abolish the offices of justices 
of the peace, police magistrates and constables in and 
for the territory within said city, and may limit the ju- 
risdiction of justices of the peace in the territory of said 
County of Cook outside of said city to that territory, 
and in such case the jurisdiction and practice of said 
municipal courts shall be such as the general assembly 
shall prescribe; and the general assembly may pass 
all laws which it may deem requisite to effectually 
provide a complete system of local municipal govern- 
ment in and for the city of Chicago. 

No law based upon this amendment to the constitu- 
tion, affecting the municipal government of the city 
of Chicago, shall take effect until such law shall be 
consented to by a majority of the legal voters of said 
city voting on the question at any election, general, 
municipal or special ; and no local or special law based 
upon this amendment affecting specially any part of 
the city of Chicago shall take effect until consented to 
by a majority of the legal voters of such part of said 
city voting on the question at any election, general, 
municipal or special. Nothing in this section con- 
tained shall be construed to repeal, amend or affect 



116 

section four (4) of Article XI of the Constitution of 
this State. 

[This added section was proposed by the general assembly in 1903, 
was submitted to the voters at the election November 8, 1904, was 
adopted and was proclaimed adopted by the Governor December 5, 
1904.] 



AETICLE V. 

EXECUTIVE DEPAKTMENT. 

Sec. 1. The executive department shall consist of 
a governor, lieutenant governor, secretary of state, 
auditor of public accounts, treasurer, superintendent 
of public instruction and attorney general, who shall, 
each with the exception of the treasurer, hold his office 
for the term of four years from the second Monday 
of January next after his election, and until his suc- 
cessor is elected and qualified. They shall, except the 
lieutenant governor, reside at the seat of government 
during their term of office, and keep the public rec- 
ords, books and papers there, and shall perform such 
duties as may be prescribed by law. 

" Since the passage of the act of June 19, 1891, en- 
titled 'An act to entitle women to vote at any election 
held for the purpose of choosing any officer under the 
general or special school laws of this State,' women 
above the age of twenty-one and having the qualifica- 
tions required in that act, are entitled to vote at any 
election of school officers, except that of superin- 
tendent of public instruction and county superintend- 
ents of schools.' ' 

"At the election of the State and county superin- 
tendent of schools, the qualifications of the voters 
must be those prescribed in sec. 1 of art 7 of the 
constitution, but the constitution contains no direction 
as to what other school officers shall be created, or as 
to the mode in which the incumbents of those offices 
shall be designated and chosen." 

Plummer v. Yost, 144 111. 68. 



H7 

Sec. 2. The treasurer shall hold his office for the 
term of two years, and until his successor is elected 
and qualified, and shall be ineligible to said office for 
two years next after the end of the term for which 
he was elected. He may be required by the governor 
to give reasonable additional security, and in default 
of so doing his office shall be deemed vacant. 

ELECTION. 

Sec. 3. An election for governor, lieutenant gov- 
ernor, secretary of state, auditor of public accounts, 
and attorney general, shall be held on the Tuesday 
next after the first Monday of November, in the year 
of our Lord 1872, and every four years thereafter; 
for superintendent of public instruction, on the Tues- 
day next after the first Monday of November, in the 
year 1870, and every four years thereafter; and for 
treasurer on the day last above mentioned, and every 
two years thereafter, at such places and in such man- 
ner as may be prescribed by law. 

"Where the constitution has fixed the qualifications 
of electors, such qualifications can not be changed or 
added to by the legislature, or otherwise than by an 
amendment of the constitution. The legislature has 
no power to confer the elective franchise upon other 
classes than those to whom it is given by the con- 
stitution. 

The constitutional qualification of electors is ap- 
plicable, at least, in all cases of an election held for an 
officer who is mentioned or provided for in the consti- 
tution, unless it is indicated by that instrument that 
such officer may be otherwise elected or appointed, or 
that the legislature or some other body may deter- 
mine by whom such officer may be elected or ap- 
pointed. ' ' 

The People v. English, 139 111. 622. 

Sec. 4. The returns of every election for the above 
named officers shall be sealed up and transmitted, by 
the returning officers, to the secretary of state, di- 
rected to "The speaker of the house of representa- 



118 

fives," who shall, immediately after the organization 
of the house, and before proceeding to other business, 
open and publish the same in the presence of a major- 
ity of each house of the general assembly, who shall, 
for that purpose, assemble in the hall of the house of 
representatives. The person having the highest num- 
ber of voters for either of said offices shall be declared 
duly elected ; but if two or more have an equal and the 
highest number of votes, the general assembly shall, 
by joint ballot, choose one of such persons for said 
office. Contested elections for all of said offices shall 
be determined by both houses of the general assembly, 
by joint ballot, in such manner as may be prescribed 
by law. 

ELIGIBILITY. 

Sec. 5. No person shall be eligible to the office of 
governor, or lieutenant governor, who shall not have 
attained the age of thirty years, and been for five 
years next preceding his election, a citizen of the 
United States and of this State. Neither the governor, 
lieutenant governor, auditor of public accounts, 
secretary of state, superintendent of public instruc- 
tion nor attorney general shall be eligible to any other 
office during the period for which he shall have been 
elected. 

GOVEBNOK. 

Sec. 6. The supreme executive power shall be 
vested in the governor, who shall take care that the 
laws be faithfully executed. 

Sec. 7. The governor shall, at the commencement 
of each session, and at the close of his term of office, 
give to the general assembly information, by message, 
of the condition of the state, and shall recommend 
such measures as he shall deem expedient. He shall 
account to the general assembly, and accompany his 
message with a statement of all moneys received and 
paid out by him from any funds subject to his order, 
with vouchers, and, at the commencement of each 
regular session, present estimates of the amount of 



119 

money required to be raised by taxation for all pur- 
poses. 

Sec. 8. The governor may, on extraordinary occa- 
sions, convene the general assembly, by proclamation, 
stating therein the purpose for which they are con- 
vened; and the general assembly shall enter upon no 
business except that for which they were called to- 
gether. 

Sec. 9. In case of a disagreement between the two 
houses with respect to the time of adjournment, the 
governor may, on the same being certified to him, by 
the house first moving the adjournment, adjourn the 
general assembly to such time as he thinks proper, not 
beyond the first day of the next regular session. 

Sec. 10. The governor shall nominate, and by and 
with the advice and consent of the senate, (a majority 
of all the senators selected concurring by yeas and 
nays,) appoint all officers whose offices are established 
by this constitution, or which may be created by law, 
and whose appointment or election is not otherwise 
provided for ; and no such officer shall be appointed or 
elected by the general assembly. ,<, 

"Sec. 10, art. 5 provides that the Governor shall, 
by and with the advice and consent of the Senate, ap- 
point all officers whose offices are established by the 
constitution, or which may be created by law, and 
whose appointment or election is not otherwise pro- 
vided for, and no officer shall be appointed or elected 
by the general assembly. This section manifestly re- 
fers to officers or persons performing duties for the 
State, as contradistinguished from county, city, town- 
ship or other municipal officers. If not, then every 
petty municipal officer would have to be appointed by 
the Governor and confirmed by the Senate unless such 
officers were in all cases made elective. Counties, 
cities, townships, school trustees, directors of schools 
and other such corporations could not appoint per- 
sons to aid in carrying out the purpose of their or- 
ganization. This provision, then, can have no refer- 
ence to such or other municipalities. 



120 

This section, then, only being applicable to offices 
created by the constitution, and not otherwise pro- 
vided for, and to new offices created by the general 
assembly, and not required to be filled in some other 
mode, empowers the Governor to appoint to fill the 
place, bnt having no application to mere municipal 
government. When the general assembly creates a 
body of that character, it has the power to provide 
the manner of filling the offices for its government. 
The constitution having prescribed no particular 
mode, that body is left to select any means for the ad- 
ministration of government it thinks best adapted to 
that end. It may provide for election by the people, 
or may authorize any officer or person to fill the 
offices by appointment." That power has not been 
placed beyond legislative domain." 
People v. Morgan, 90 111. 565. 

1 'The constitution, in section 10 of article 5, pro- 
vides for the appointment of certain officers by the 
Governor. But the reasoning in The People v. Mor- 
gan shows, that it was never intended to vest in the 
Governor the selection of such local and municipal 
officers as these commissioners. The power to ap- 
point officers of this class is not specifically designated 
in the constitution, as either a legislative, judicial or 
executive power. It is not therein specifically con- 
ferred on either department. Nor is there anything 
therein expressed which, either directly or impliedly, 
prohibits the legislature from authorizing the county 
court to appoint the commissioners. Therefore, the 
authority conferred on that court to do so, does not 
make the act invalid. The law-making powers of the 
States can do any legislative acts, not prohibited by 
the State constitutions. 'Without and beyond these 
limitations and restrictions, they are as absolute, om- 
nipotent and uncontrollable as Parliament. ' " 
People v. Hoffman, 116 111. 604. 

Sec. 11. In any case of vacancy, during the recess 
of the senate, in any office which is not elective, the 
governor shall make a temporary appointment until 
the next meeting of the senate, when he shall nomi- 



121 

nate some person to fill such office; and any person so 
nominated, who is confirmed by the senate, (a major- 
ity of all the senators elected concurring by yeas and 
nays,) shall hold his office during the remainder of 
the term, and until his successor shall be appointed 
and qualified. No person, after being rejected by the 
senate, shall be again nominated for the same office 
at the same session, unless at the request of the senate, 
or be appointed to the same office during the recess 
of the general assembly. 

Sec. 12. The governor shall have power to remove 
any officer whom he may appoint, in case of incom- 
petency, neglect of duty, or malfeasance in office ; and 
he may declare his office vacant, and fill the same as 
is herein provided in other cases of vacancy. 

" Under section 12, article 5, of the constitution, the 
power of the Governor to remove officers appointed 
by him, for incompetency, neglect of duty, or mal- 
feasance in office, and fill the vacancy caused thereby, 
is not confined to officers appointed by and with the 
advice and consent of the Senate, but it extends to 
all officers appointed by the Governor, under the law, 
whether with or without the concurrence of the 
Senate. 

The substantive, principal thing of section 12, 
article 5, of the constitution, is the power of removal 
from office contained in the first clause, and what fol- 
lows in the last clause, as to filling vacancies, is in- 
cidental and subordinate. Under the rules of con- 
struction, therefore, the last clause should not be held 
to control and govern the first, but should yield to and 
be made to conform to the first. 

The intention of the constitution of 1870 was to 
make the power of removal from office by the Gov- 
ernor, co-extensive with his power of appointment. 

The power of removal from office given by the con- 
stitution of 1870 to the Governor, applies to officers 
appointed by him under special and particular laws 
passed prior to the adoption of the constitution, as 
well as to those appointed under subsequent laws. 
Wilcox v. The People, 90 HI. 186. 



122 

Sec. 13. The governor shall have power to grant 
reprieves, commutations and pardons, after convic- 
tion, for all offenses, subject to such regulations as 
may be provided by law relative to the manner of 
applying therefor. 

Sec. 14. The governor shall be commander-in-chief 
of the military and naval forces of the State (except 
when they shall be called into the service of the United 
States,) and may call out the same to execute the 
laws, suppress insurrection, and repel invasion. 

Sec. 15. The governor, and all civil officers of this 
state, shall be liable to impeachment for any misde- 
meanor in office. 

VETO. 

Sec. 16. Every bill passed by the general assembly 
shall, before it becomes a law, be presented to the 
Governor. 

If he approve, he shall sign it, and thereupon it 
shall become a law; but if he do not approve, he shall 
return it, with his objections, to the house in which it 
shall have originated, which house shall enter the 
objections at large upon its journal and proceed to re- 
consider the bill. If then two-thirds of the members 
elected agree to pass the same, it shall be sent, to- 
gether with the objections, to the other house, by 
which it shall likewise be reconsidered; and if ap- 
proved by two-thirds of the members elected to that 
house, it shall become a law notwithstanding the ob- 
jections of the Governor ; but in all such cases the vote 
of each house shall be determined by yeas and nays, 
to be entered upon the journal. 

Bills making appropriations of money out of the 
treasury shall specify the objects and purposes for 
which the same are made, and appropriate to them 
respectively their several amounts in distinct items 
and sections, and if the Governor shall not approve 
any one or more of the items or sections contained in 
any bill, but shall approve the residue thereof, it shall 



123 

become a law as to the residue in like manner as if 
he had signed it. 

The Governor shall then return the bill, with his 
objections to the items or sections of the same not ap- 
proved by him, to the house in which the bill shall 
have originated, which house shall enter the objec- 
tions at large upon its journal, and proceed to recon- 
sider so much of said bill as is not approved by the 
Governor. 

The same proceedings shall be had in both houses 
in reconsidering the same as is hereinbefore provided 
in case of an entire bill returned by the Governor with 
his objections ; and if any item or section of said bill 
not approved by the Governor shall be passed by two- 
thirds of the members elected to each of the two 
houses of the general assembly, it shall become part 
of said law, notwithstanding the objections of the 
Governor. 

Any bill which shall not be returned by the Gov- 
ernor within ten days (Sundays excepted) after it 
shall have been presented to him, shall become a law 
in like manner as if he had signed it; unless the 
general assembly shall, by their adjournment, prevent 
its return, in which case it shall be filed with his objec- 
tions in the office of the Secretary of State, within ten 
days after such adjournment, or become a law.* 

*[This section, as amended, was proposed by the general assembly, 
1883, ratified by a vote of the people November 4, 1884, proclaimed 
adopted by the Governor November 28, 1884.] 

The day on which the bill is sent to the Governor is 
excluded in computing the ten days mentioned in the 
above section. 

People v. Hatch, 33 111. 9. 

LIEUTENANT GOVEKNOK. 

Sec. 17. In case of death, conviction on impeach- 
ment, failure to qualify, resignation, absence from the 
state, or other disability of the governor, the powers, 
duties and emoluments of the office, for the residue of 



124 

the term, or until the disability shall be removed, 
shall devolve upon the lieutenant governor. 

Sec. 18. The lieutenant governor shall be president 
of the senate, and shall vote only when the senate is 
equally divided. The senate shall choose a president, 
pro tempore, to preside in case of the absence or im- 
peachment of the lieutenant governor, or when he 
shall hold the office of governor. 

Sec. 19. If there be no lieutenant governor, or if 
the lieutenant governor shall, for any of the causes 
specified in section 17 of this article become incapable 
of performing the duties of the office, the president of 
the senate shall act as governor until the vacancy is 
filled or the disability removed; and if the president 
of the senate, for any of the above named causes, shall 
become incapable of performing the duties of gov- 
ernor, the same shall devolve upon the speaker of the 
house of representatives. 

OTHEK STATE OFFICERS. 

Sec. 20. If the office of auditor of public accounts, 
treasurer, secretary of state, attorney general, or su- 
perintendent of public instruction shall be vacated by 
death, resignation or otherwise, it shall be the duty of 
the governor to fill the same by appointment, and the 
appointee shall hold his office until his successor shall 
be elected and qualified in such manner as may be pro- 
vided by law. An account shall be kept by the officers 
of the executive department, and of all the public in- 
stitutions of the state, of all moneys received or dis- 
bursed by them, severally, from all sources, and for 
every service performed, and a semi-annual report 
thereof be made to the governor, under oath ; and any 
officer who makes a false report shall be guilty of 
perjury, and punished accordingly. 

Sec. 21. The officers of the executive department, 
and of all the public institutions of the state, shall, at 
least ten days preceding each regular session of the 
general assembly, severally report to the governor, 



125 

who shall transmit such reports to the general as- 
sembly, together with the reports of the judges of the 
Supreme Court of the defects in the constitution and 
laws; and the governor may at any time require in- 
formation in writing, under oath, from the officers of 
the executive department, and all officers and manag- 
ers of state institutions, upon any subject relating to 
the condition, management and expenses of their re- 
spective offices. 

THE SEAL OF STATE. 

Sec. 22. There shall be a seal of the state, which 
shall be called the " Great seal of the State of Illi- 
nois," which shall be kept by the secretary of state, 
and used by him, officially, as directed by law. 

FEES AND SALAEIES. 



Sec. 23. The officers named in this article shall re- 
ceive for their services a salary to be established by 
law, which shall not be increased or diminished during 
their official terms, and they shall not, after the expira- 
tion of the terms of those in office at the adoption of 
this constitution, receive to their own use any fees, 
costs, perquisites of office, or other compensation. 
And all fees that may hereafter be payable by law for 
any service performed by any officer provided for in 
this article of the constitution, shall be paid in ad- 
vance into the state treasury. 

DEFINITION AND OATH OF OFFICE. 

Sec. 24. An office is a public position created by 
the constitution or law, continuing during the pleas- 
ure of the appointing power, or for a fixed time, with 
a successor elected or appointed. An employment is 
an agency, for a temporary purpose, which ceases 
when that purpose is accomplished. 

Factory inspectors appointed under the act of June 
17, 1893 are officers of the government. 
Ritchie v. The People, 155 111. 98. 



126 

Sec. 25. All civil officers, except members of the 
general assembly and such inferior officers as may be 
by law exempted, shall, before they enter on the duties 
of their respective offices, take and subscribe the fol- 
lowing oath or affirmation: 

I do solemnly swear (or affirm, as the case may be,) 
that I will support the constitution of the United 
States, and the constitution of the State of Illinois, 
and that I will faithfully discharge the duties of the 
office of according to the best of my ability. 

And no other oath, declaration or test shall be re- 
quired as a qualification. 

"It is urged that the constitution of 1870 requires 
such oath to be taken by township treasurers, they 
being nowhere, by law, exempted therefrom, and ref- 
erence is made to section 25 of article 5, of the con- 
stitution. That section provides that all civil officers, 
except members of the general assembly, and such 
inferior officers as may be by law exempted, shall, be- 
fore they enter on the duties of their respective offices, 
take and subscribe the oath of office therein pre- 
scribed; and further provides, that no other oath, 
declaration or test shall be required as a qualification. 

It certainly has not been understood by the legisla- 
tive department that this constitutional provision is 
self -executing, as express provisions of law have been 
enacted, prescribing with particularity every essential 
step to be taken by each person elected or appointed 
to an office, the mode of election or appointment, the 
giving of bonds, the manner, time, etc., of taking the 
oath of office (where such oath is required), in order 
to become qualified to perform the duties of the office. 
If it were supposed that this constitutional provision 
was self-enforcing, all the numerous laws requiring 
the taking of official oaths would be supererogatory. ' ' 
School Directors v. The People, 79 111. 513. 

"A plain defect in both of said pleas, which seems 
to have escaped the attention of counsel, is that it is 
not averred that the defendant, before entering upon 
the duties of said office, took and subscribed an oath 



127 

to support the constitution of the United States, and 
the constitution of the State of Illinois, as well as an 
oath to faithfully perform the duties of his office, as 
required by section 25, article 5, of the constitution of 
the State. The constitutional mandate is that all civil 
officers, with certain exceptions which do not include 
trustees of schools shall take and subscribe such oath 
before entering upon the duties of their respective 
offices. Such official oath is an essential and neces- 
sary qualification for holding the office and without 
it the title to the office fails. Thus, in Thomas v. 
Owens, 4 Md. 189, where the constitution required that 
every person elected or appointed to any office of 
profit or trust under the constitution, or laws made 
pursuant thereto, should, before entering upon the 
duties of such office, take and subscribe a certain 
official oath, it was held that Thomas, though elected 
to the office of comptroller, and holding a commission 
therefor from the governor, could not be considered 
as in office until qualified by taking such oath, and that 
until he did so qualify, he was no more comptroller 
than any other citizen. ,, 

Simons v. The People, 18 111. App. 590. 
AETICLE VI. 

JUDICIAL DEPARTMENT. 

Sec. 1. The judicial powers, except as in this 
article is otherwise provided, shall be vested in one 
supreme court, circuit courts, county courts, justices 
of the peace, police magistrates, and such courts as 
may be created by law in and for cities and incor- 
porated towns. 

^ "The first section of article four of our constitu- 
tion provides that the judicial power of the State, 
except as otherwise therein provided, shall be vested 
in one Supreme Court, circuit courts, county courts, 
justices of the peace, police magistrates, and in such 
courts as may be created by law in cities and incor- 
porated towns. This section has exhausted the judi- 
cial power of the people of the State. It is there 



128 

fully disposed of, leaving no residuum. There is noth- 
ing in that article that can be tortured into authority 
to confer any of the judicial power of the State on 
courts of other States, or the federal courts, hence it 
would be palpablv unconstitutional to enact such a 
law." 

Mo. Riv. Tel. Co. v. National Bank, 74 111. 220. 

"At the time the constitution was adopted, as well 
as at the time when the general law was enacted, there 
were existing in the State city courts other than the 
one in question, and with jurisdiction and powers not 
uniform. Although they were to continue to exist 
until otherwise provided by law, it was the plain duty 
of the legislature, in order to carry into effect the de- 
clared intent of the constitution, to bring about uni- 
formity as soon as practicable. Surely these previ- 
ously existing city courts, with jurisdiction not 
uniform as between them, and variant from that of 
those established under the general laws, were not to 
be continued in existence any longer than until the 
legislature should establish city courts with uniform 
powers and duties. How was this to be done, except 
by the substitution of city courts, with like jurisdic- 
tion, for those then existing with unlike jurisdiction? 
Frantz v. Fleitz, 85 111. 367. 

SUPKEME COURT. 

Sec. 2. The Supreme Court shall consist of seven 
judges, and shall have original jurisdiction in cases 
relating to the revenue, in mandamus and habeas 
corpus, and appellate jurisdiction in all other cases. 
One of said judges shall be chief justice; four shall 
constitute a quorum, and the concurrence of four 
shall be necessary to every decision. 

"It is also urged, that, by section 2 of article 6 of 
the constitution, the Supreme Court is vested with 
original jurisdiction in certain cases, 'and appellate 
jurisdiction in all other cases,' and that it is there- 
fore, a matter of option with the appellant whether 
he will go to the Appellate Court in any case. But the 



129 

constitution nowhere provides that this appel- 
late jurisdiction 'in all other cases' shall be direct 
from the circuit or other trial court; it may well be, 
under section 11 of the same article, through the in- 
termediate appellate courts therein provided for. 
Moreover, these two sections, 2 and 11 of article 6, 
should be construed together, and when so construed, 
it is plain that appellants in all cases do not have a 
constitutional right, either direct or through the inter- 
mediate courts, of appeal to this court. To hold that 
they do would be to attach no meaning whatever to 
much that is contained in said section 11." 
Fleischman v. Walker, 91 111. 322. 

"Section 2 of Art VI of the Constitution declares 
that 'the Supreme Court shall have original jurisdic- 
tion in cases relating to the revenue, in mandamus 
and habeas corpus, and appellate jurisdiction in all 
other cases.' ' 

"By this it was not intended to confer upon the 
Supreme Court jurisdiction absolutely in all other 
cases, but only that in all other cases in which it 
should have jurisdiction, whether few or many or all, 
it should be appellate.' ' 

City of Chicago v. Vulcan Iron Works, 2 111. 
App. 191. 

This section does not give the Supreme Court ex- 
clusive jurisdiction in cases relating to the revenue, 
in mandamus and habeas corpus. 

Hundley v. Commissioners, 67 III. 559. 

' ' There are only four classes of cases in which there 
is a constitutional right of appeal or writ of error in 
this court. These four classes are, criminal cases, 
and cases in which either a franchise, a freehold, or 
the validity of a statute is involved. Even in these 
cases such constitutional right of appeal or writ of 
error to this court is not the right of a direct appeal 
from a writ of error to the trial court, but such appeal 
or writ of error may be through the intermediary of 
the Appellate Court. It is for the legislature to de- 



130 

termine as to whether in all, or some, or any of these 
cases, the appeal shall be direct to this court, or other- 
wise.' ' 

Young v. Stearns, 91 111. 222. 

Sec. 3. No person shall be eligible to the office of 
judge of the Supreme Court unless he shall be at least 
thirty years of age, and a citizen of the United States, 
nor unless he shall have resided in this state five years 
next preceding his election, and be a resident of the 
district in which he shall be elected. 

Sec. 4. Terms of the Supreme Court shall continue 
to be held in the present grand divisions at the sev- 
eral places now provided for holding the same; and 
until otherwise provided by law, one or more terms of 
said court shall be held, for the northern division, in 
the city of Chicago, each year, at such times as said 
court may appoint, whenever said city or the County 
of Cook shall provide appropriate rooms therefor, 
and the use of a suitable library, without expense to 
the State. The judicial divisions may be altered, in- 
creased or diminished in number, and the times and 
places of holding said court may be changed by law. 

Sec. 5. The present grand divisions shall be pre- 
served, and be denominated Southern, Central and 
Northern, until otherwise provided by law. The state 
shall be divided into seven districts for the election 
of judges, and until otherwise provided by law, they 
shall be as follows : 

First District. — The counties of St. Clair, Clinton, 
Washington, Jefferson, Wayne, Edwards, Wabash, 
White, Hamilton, Franklin, Perry, Kandolph, Mon- 
roe, Jackson, Williamson, Saline, Gallatin, Hardin, 
Pope, Union, Johnson, Alexander, Pulaski and Mas- 
sac. 

Second District. — The counties of Madison, Bond, 
Marion, Clay, Eichland, Lawrence, Crawford, Jasper, 
Effingham, Fayette, Montgomery, Macoupin, Shelby, 
Cumberland, Clark, Greene, Jersey, Calhoun and 
Christian. 



131 

Third District. — The counties of Sangamon, Macon, 
Logan, Dewitt, Piatt, Douglas, Champaign, Ver- 
milion, McLean, Livingston, Ford, Iroquois, Coles, 
Edgar, Moultrie and Tazewell. 

Fourth District. — The counties of Fulton, McDon- 
ough, Hancock, Schuyler, Brown, Adams, Pike, Ma- 
son, Menard, Morgan, Cass and Scott. 

Fifth District. — The counties of Knox, Warren, 
Henderson, Mercer, Henry, Stark, Peoria, Marshall, 
Putnam, Bureau, LaSalle, Grundy and Woodford. 

Sixth District. — The counties of Whiteside, Carroll, 
Jo Daviess, Stephenson, Winnebago, Boone, Mc- 
Henry, Kane, Kendall, DeKalb, Lee, Ogle and Rock 
Island. 

Seventh District. — The counties of Lake, Cook, 
Will, Kankakee and DuPage. 

The boundaries of the districts may be changed at 
the session of the general assembly next preceding the 
election for judges therein, and at no other time ; but 
whenever such alterations shall be made, the same 
shall be upon the rule of equality of population, as 
nearly as county bounds will allow, and the districts 
shall be composed of contiguous counties, in as nearly 
compact form as circumstances will permit. The 
alteration of the districts shall not affect the tenure of 
office of any judge. 

Sec. 6. At the time of voting on the adoption of 
this constitution, one judge of the Supreme Uourt 
shall be elected by the electors thereof, in each of said 
districts numbered two, three, six and seven, wno shall 
hold his office for the term of nine years, from the first 
Monday of June, in the year of our Lord 1870. The 
term of offices of judges of the Supreme Court, elected 
after the adoption of this constitution, shall be nine 
years ; and on the first Monday of June of the year in 
which the term of any of the judges in office at the 
adoption of this constitution, or of the judges then 
elected, shall expire, and every nine years thereafter, 
there shall be an election for the successor or successors 



132 

of such judges, in the respective districts wherein the 
term of such judges shall expire. The chief justice 
shall continue to act as such until the expiration of 
the term for which he was elected, after which the 
judges shall choose one of their number chief justice. 

Sec. 7. From and after the adoption of this consti- 
tution, the judges of the Supreme Court shall each re- 
ceive a salary of $4,000 per annum, payable quarterly, 
until otherwise provided by law. And after said 
salaries shall be fixed by law, the salaries of the 
judges in office shall not be increased or diminished 
during the terms for which said judges shall have been 
elected. 

Sec. 8. Appeals and writs of error may be taken 
to the Supreme Court, held in the grand division in 
which the case is decided, or, by consent of the parties, 
to any other grand division. 

Section 2 of article 6 of the constitution gives to 
the Supreme Court appellate jurisdiction in all cases, 
except cases relating to the revenue, in mandamus 
and habeas corpus, in which cases it has original juris- 
diction. By section 8 of the same article it is pro- 
vided that appeals and writs of error may be taken to 
the Supreme Court held in the grand division in 
which the case is decided, or, by consent of parties to 
any other grand division. 

The right to appeal or to sue out a writ of error is 
a constitutional right, and must be allowed when 
claimed. ' ' 

Schlattweiler v. St. Clair County, 63 111. 45. 

Sec. 9. The Supreme Court shall appoint one re- 
porter of its decisions, who shall hold his office for six 
years, subject to removal by the court. 

Sec. 10. At the time of the election for representa- 
tives in the general assembly, happening next preced- 
ing the expiration of the terms of office of the present 
clerks of said court, one clerk of said court for each 
division shall be elected, whose term of office shall be 



133 

six years from said election, but who snail not enter 
upon the duties of his office until the expiration of the 
term of his predecessor, and every six years there- 
after one clerk of said court for each division shall be 
elected. 

APPELLATE COURTS. 

Sec. 11. After the year of our Lord 1874, inferior 
appellate courts, of uniform organization and juris- 
diction, may be created in districts formed for that 
purpose, to which such appeals and writs of errors as 
the general assembly may provide may be prosecuted 
from circuit and other courts, and from which appeals 
and writs of errors shall lie to the Supreme Court, in 
all criminal cases, and cases in which a franchise or 
freehold or the validity of a statute is involved, and 
in such other cases as may be provided by law. Such 
appellate courts shall be held by such number of 
judges of the circuit courts, and at such times and 
places, and in such manner, as may be provided by 
law; but no judge shall sit in review upon cases de- 
cided by him, nor shall said judges receive any addi- 
tional compensation for such services. 

Under this section the writ of error from the 
Supreme Court to the Appellate Court in all criminal 
cases is a writ of right of which the party cannot be 
deprived by legislation. 

Smith v. The People, 98 111. 408. 

"This is the only provision of the constitution re- 
lating to the jurisdiction of the Appellate Courts, and 
it follows, that whatever powers they may lawfully 
exercise are referable to it as their source. It is a 
grant of appellate jurisdiction only, and it is not com- 
petent for the legislature to clothe these courts, as 
such, with any other kind of jurisdiction." 
Hawes v. The People, 124 111. 561. 

"It would seem that the right to condemn private 
property for corporate use is perhaps the most impor- 
tant franchise of which a railroad corporation can be 



134 

possessed — the highest exercise of power. Such a 
right is essentially a part of the sovereign pre- 
rogative. No private individual is clothed with such 
power. A private citizen having adequate means, 
and owning the lands upon which it is necessary to 
operate, might, without legislative grant, construct a 
railroad and use it for the purposes of transportation 
and for hire. He might lawfully demand and receive 
compensation or tolls for the use of the road. Such a 
power, in the hands of a private citizen, is not a fran- 
chise, while, in the hands of a corporation, it is un- 
doubtedly, in one sense, a franchise. A private 
citizen, however, without a legislative grant, has no 
power to seize and take the property of another citizen 
merely because it might be needed for his railroad. 
Such power can be exercisd by a natural or artificial 
person, (other than the State,) only by legislative 
grant. According to the definition of a franchise, 
given by Chief Justice Taney, the right of eminent 
domain is surely a franchise, for it is ' a special privi- 
lege conferred by government upon individuals, which 
does not belong to citizens of the country in general, 
of common right. ' " 

There is no quality attached to a franchise, by any 
definition that has been given by any court or law 
commentator, which is not found to be a quality of 
this franchise, unless it be the quality of being exclu- 
sive. But as we have seen, it is not essential to every 
franchise, even in its legal sense, that it should, in all 
cases, be exclusive. The right to issue bank notes to 
circulate as money is undoubtedly a franchise, and yet 
that right may be conferred upon one bank without, in 
any degree, invading the like right conferred upon an- 
other bank. 

After a careful consideration of the question, we 
can have no doubt that the right to condemn private 
property for corporate purposes is a franchise, within 
the meaning of the term as used in our constitution 
and law." 

C. & W. I. R. R. Co. v. Dunbar, 95 111. 578. 

" Since the legislature of the State had plenary 
power to vest or not to vest, as it deemed advisable, 



135 

this court with the ultimate jurisdiction to review 
cases of the class to which this case belongs, no good 
reason is perceived why it had not full authority to 
provide in section 87 of the Practice act that the judg- 
ments of the appellate courts in such cases shall be 
final and conclusive as to all matters of fact in con- 
troversy, and in section 89 that this court shall re- 
examine such cases as to questions of law, only. The 
legislature might, if it had seen fit so to do, have con- 
ferred upon this court, in cases of the class of this, 
jurisdiction to review the judgments of the appellate 
courts, both upon questions of law and questions of 
fact, or have made the decisions of the appellate courts 
in such cases final, both as to law and as to fact; and 
it seems from these considerations to logically follow 
that the legislature has authority to make the decis- 
ions of the appellate courts final merely as to ques- 
tions of fact, and to confer upon the Supreme Court 
jurisdiction to review upon questions of law, only." 
C. & A. R. A. Co. v. Fisher, 141 111. 621. 



CIRCUIT COURTS. 

Sec. 12. The circuit courts shall have original 
jurisdiction of all causes in law and equity, and such 
appellate jurisdiction as is or may be provided by law, 
and shall hold two or more terms each year in every 
county. The terms of office of judges of circuit courts 
shall be six years. 

"The circuit courts are the only superior courts in 
the State, that possess original and unlimited juris- 
diction. They exercise, within their respective coun- 
ties, all the powers and jurisdiction of the courts of 
king's bench and common pleas in England; and al- 
though these courts are inferior to the Supreme Court, 
because appeals and writs of error lie from their de- 
cisions to the^ Supreme Court, yet this circumstance 
does not constitute them inferior courts in the common 
law sense of the term. Courts not of record, are de- 
nominated inferior courts, because, if their proceed- 
ings are questioned in the superior courts, they must 
specially show, that they acted within their jurisdic- 



136 

tion. The circuit courts are pre-eminently the su- 
perior courts of this State.' ' 

Beaubien v. Brinckerhoff, 3 111. 274. 

Kenney v. Greer, 13 111. 438. 

' i Circuit courts, in this State, have general jurisdic- 
tion of all cases at law and in equity, and this without 
regard to the origin of the right or source of title. 
Titles derived from the general government, and con- 
tracts made in other States or in foreign governments, 
are the frequent subject of litigation, without question 
of the jurisdiction of the courts." 
Isett v. Stuart, 80 111. 405. 

"The judgment in this case is reversed, on the au- 
thority of Hoagland v. Creed, 81 111. 506, wherein it 
was held that parties could not stipulate to confer 
judicial functions upon an individual, and clothe him 
with judicial power. This was not an arbitration, 
Mr. Wood being the arbitrator mutually chosen, but 
it was an attempt to confer upon him the power of a 
judge, to decide the pending case, and he did decide it, 
the court carrying out his decision by entering the 
judgment he had reached, and not his own judgment. 
There is no authority for this proceeding, and the 
judgment must be reversed, and the cause remanded." 
Bishop v. Nelson, 83 111. 601. 

The same rule prevails in criminal cases. 
Cobb v. The People, 84 111. 511. 

"We are not unmindful of the fact that section 2 of 
division 10, of the Criminal Code, provides that the 
Criminal Court of Cook County shall have exclusive 
original jurisdiction of all criminal offenses in the 
county of Cook; but this statute can have no bearing 
on the case. The jurisdiction of the circuit courts, so 
far as conferred by the constitution, can not be taken 
away, nor can it be changed or abridged by an act of 
the legislature. ' ' 

Berhowitz v. Lester, 121 111. 106. 

"Section 12 of Article 6 of the present constitution 
of the State provides, that 'the circuit courts shall 



137 

have original jurisdiction of all cases in law and 
equity/ As quo warranto is a common law remedy, 
the circuit courts are vested by the organic law with 
the power to entertain it. In addition to this, the 'Act 
to revise the law in relation to quo warranto' pro- 
vides, that a petition for leave to file an information 
in the nature of a quo warranto in the name of the 
People of the State, may be presented to ' any court of 
record of competent jurisdiction,' in case 'any person 
shall usurp, intrude into, or unlawfully hold or execute 
any office. ' ' ' 

Snowball v. The People, 147 111. 265. 

Sec. 13. The state exclusive of the county of Cook 
and other counties having a population of 100,000, 
shall be divided into judicial circuits, prior to the ex- 
piration of the terms of office of the present judges of 
the circuit courts. Such circuits shall be formed of 
contiguous counties, in as nearly compact form and as 
nearly equal as circumstances will permit, having due 
regard to business, territory and population, and shall 
not exceed in number one circuit for every 100,000 of 
population in the state. One judge shall be elected 
for each of said circuits by the electors thereof. New 
circuits may be formed and the boundaries of circuits 
changed by the general assembly, at its session next 
preceding the election for circuit judges, but at no 
other time : Provided, that the circuits may be equal- 
ized or changed at the first session of the general as- 
sembly after the adoption of this constitution. The 
creation, alteration or change of any circuit shall not 
affect the tenure of office of any judge. Whenever 
the business of the Circuit Court of any one or of two 
or more contiguous counties, containing a population 
exceeding 50,000, shall occupy nine months of the 
year, the general assembly may make of such county 
or counties a separate circuit. Whenever additional 
circuits are created, the foregoing limitations shall be 
observed. 

' 'Each judge does not hold a distinct and separate 



138 

circuit court in Cook County, but the Circuit Court of 
that county consists of five judges, and any arrange- 
ment made regarding the trial of causes, between the 
judges themselves, ought not to be reviewed in this 
court without very strong reason." 

Ettinghausen v. Marx, 86 111. 475. 

Sec. 14. The general assembly shall provide for the 
times of holding court in each county, which shall not 
be changed, except by the general assembly next pre- 
ceding the general election for judges of said courts; 
but additional terms may be provided for in any 
county. The election for judges of the circuit courts 
shall be held on the first Monday in June, in the year 
of our Lord 1873, and every six years thereafter. 

"The evident intention of the constitution was to 
prevent legislative action upon this subject except at 
the sessions next preceding the general elections. It 
was the design of that instrument that the laws fixing 
or changing the times of holding the courts should be 
passed at the particular sessions named and should 
bear date as of those sessions. If the legislature of 
1885 thought best to change the times of holding the 
courts, it was to look for the terms of court to be 
changed to a law passed at the session next preceding 
the last general election for judges, and not to a law 
passed in some intermediate year." 

Kepley v. The People, 123 111. 379. 

Sec. 15. The general assembly may divide the state 
into judicial circuits of greater population and terri- 
tory, in lieu of the circuits provided for in section 13 of 
this article, and provide for the election therein, 
severally, by the electors thereof, by general ticket, of 
not exceeding four judges, who shall hold the circuit 
courts in the circuit for which they shall be elected, in 
such manner as may be provided by law. 

"On reference to the article of the constitution in 
relation to the judicial department, in that part which 
treats of circuit courts, it will be observed, two sys- 



139 

terns for judicial circuits are provided for — one as in 
section 13, to be composed of contiguous counties, in 
which one judge shall be elected, and another in lieu 
thereof, to be composed of greater population and ter- 
ritory, in which shall be elected by general ticket not 
exceeding four judges, who shall hold the circuit 
courts therein as provided by law. Obviously it was 
the intention the State should be divided first into cir- 
cuits with one judge, under the provisions of section 
13, for it is made the duty of the General Assembly to 
so divide the State, exclusive of Cook county, prior to 
the expiration of the term of office of the circuit judges 
then in office. That was accordingly done. But in 
lieu of the circuits first formed the general assembly 
was invested with a discretionary power to adopt an- 
other system of circuits, comprising a greater popula- 
tion and territory, and as to the time when the new 
system in lieu of the former might be established, the 
constitution is silent. 

The People v. Wall, 88 111. 77. 

Sec. 16. From and after the adoption of this con- 
stitution, judges of the circuit courts shall receive a 
salary of $3,000 per annum, payable quarterly, until 
otherwise provided by law. And after their salaries 
shall be fixed by law, they shall not be increased or 
diminished during the terms for which said judges 
shall be, respectively, elected; and from and after the 
adoption of this constitution, no judge of the Supreme 
or Circuit Court shall receive any other compensation, 
perquisite or benefit, in any form whatsoever, nor per- 
form any other than judicial duties to which may be- 
long any emoluments. 

"This language is as full, clear and comprehensive 
as could be well conceived to prevent supreme and cir- 
cuit judges from receiving any other compensation 
than their salaries, under any name or pretense what- 
ever, for the discharge of any duty pertaining to their 
offices. And it is prohibitory on the judges from re- 
ceiving the compensation for the performance of such 
duties except their salary. ' ' 

Hall v. Hamilton, 74: 111. 442. 



140 

Sec. 17. No person shall be eligible to the office of 
judge of the circuit or any inferior court, or to mem- 
bership in the " board of county commissioners," 
unless he shall be at least 25 years of age, and a citizen 
of the United States, nor unless he shall have resided 
in this state five years next preceding his election, and 
be a resident of the circuit, county, city, cities or in- 
corporated town in which he shall be elected. 

"On the 3d day of May, 1873, the legislature passed 
an act, the first section of which reads as follows: 
' Whenever any judge or judges of any circuit court or 
the Superior Court of Cook County, shall request any 
judge or judges of any other court of record to come 
to the assistance of such judge or judges making such 
request, in the trial of causes, and in other matters 
pending in the court, it shall be lawful for such judge 
or judges so requested to hold a branch or branches of 
the court to which he or they are so requested to come, 
with the same force and effect as if he was, or they 
were, the judge or judges of such court.' 

We are aware of no provision of our constitution 
that this section violates. The constitution requires 
each circuit judge to reside in the circuit in which he 
is elected ; but he is not, either in terms or by implica- 
tion, prohibited from holding court in another circuit, 
in such manner as may be provided by law." 

Jones v. Albee, 70 111. 40. 

Waller v. Tylly, 75 111. 576. 

COUNTY COURTS. 

Sec. 18. There shall be elected in and for each 
county, one county judge and one clerk of the county 
court, whose terms of office shall be four years. But 
the general assembly may create districts of two or 
more contiguous counties, in each of which shall be 
elected one judge, who shall take the place of, and ex- 
ercise the powers and jurisdiction of county judges in 
such districts. County courts shall be courts of rec- 
ord, and shall have original jurisdiction in all matters 
of probate, settlement of estates of deceased persons, 



141 

appointment of guardians and conservators, and set- 
tlements of their accounts, in all matters relating to 
apprentices, and in proceedings for the collection of 
taxes and assessments, and such other jurisdiction as 
may be provided for by general law. 

1 i There is nothing in this clause requiring us to hold 
that, by this grant of original jurisdiction in the speci- 
fied cases to county courts, it is, necessarily, exclusive. 
The same constitution, by section 12 of the same 
article, provides that circuit courts shall have original 
jurisdiction of all causes in law and equity and such ap- 
pellate jurisdiction as is or may be provided by law, 
etc." 

Hundley & Pees v. Commissioners of Lincoln 
Park, 67 111. 563. 

"The question occasionally arises whether the grant 
of letters testamentary or of administration on the 
estate of a person in fact living, but supposed to be 
dead, is an act beyond the jurisdiction of the court, 
and therefore so utterly void that no person is pro- 
tected in dealing with the executor or administrator 
while his letters remain unrevoked. The decease of 
the supposed decedent is. a prerequisite to the jurisdic- 
tion of the court, and that he is wholly unaffected by the 
proceedings for the settlement of his estate, — the only 
adjudication, so far as we are aware, in conflict with 
the rule here stated, having been rendered by the 
Court of Appeals of the State of New York." 

Thomas v. The People, 107 111. 523. 

Sec. 19. Appeals and writs of error shall be al- 
lowed from final determinations of county courts, as 
may be provided by law. 

"It is provided by this section that ' appeals and 
writs of error shall be allowed from final determina- 
tions of county courts, as may be provided by law. 
Plainly, this does not confer the right to a writ of 
error from this court in all cases decided by the County 
Court. Whether the case shall be taken, by appeal or 



142 

by writ of error, to this court or to some other court, 
must be provided by law. It is but a direction to the 
General Assembly to prescribe, by law, how appeals 
and writs of error shall be allowed from final deter- 
minations of county courts.' " 

Kingsbury v. Sperry, 119 111. 282. 

PROBATE COURTS. 

Sec. 20. The general assembly may provide for the 
establishment of a probate court in each county having 
a population of over 50,000, and for the election of a 
judge thereof, whose term of office shall be the same 
as that of the county judge, and who shall be elected 
at the same time and in the same manner. Said 
courts, when established, shall have original jurisdic- 
tion of all probate matters, the settlement of estates 
of deceased persons, the appointment of guardians 
and conservators, and settlement of their accounts ; in 
all matters relating to apprentices, and in cases of 
the sales of real estate of deceased persons for the 
payment of debts. 

"The Probate Court to be thus created is a court 
with special jurisdiction, and this provision of the 
constitution prescribes the limits of its jurisdiction. 
This jurisdiction embraces four subjects : First, all 
probate matters, embracing the settlement of estates 
of deceased person, and, in that connection, cases of 
the sales of real estate of deceased persons for the 
payment of debts; second, the appointment of guard- 
ians, and settlement of their accounts; third, the ap- 
pointment of conservators, and settlement of their ac- 
counts; and fourth, all matters relating to ap- 
prentice s." 

The People v. Loomis, 96 111. 379. 

"It is but reasonable to assume that it was intended 
by the framers of the constitution that these courts 
should be created from time to time, as the wants of 
the people and business necessities might require, sub- 
ject to the qualification they were not to be established 



143 

in any county not having a population in excess of 
50,000. By this limitation upon fthe power of the 
legislature to establish such courts, the authors of that 
instrument determined in advance there never would 
be any necessity for this class of courts in counties 
not having a population in excess of 50,000. As to all 
other counties the whole subject was left under the 
control of the legislature, to the same extent as if no 
limitation had been imposed. The legislature was left 
entirely free to establish such courts, or not. ' ' 

Knickerbocker v. The People, 102 111. 223. 

"The establishment of a probate court, under the 
constitution, in a particular county, is ipso facto a 
revocation of the jurisdiction of the County Court of 
such county as to all matters over which probate 
courts are given jurisdiction, and with respect to 
which county courts in counties not having probate 
courts exercise a similar jurisdiction, — or, in other 
words, that upon the establishment of a probate court 
in a particular county, the County Court of such county 
is at once, by operation of law, deprived of its juris- 
diction in matters of probate, and in all other matters 
over which probate courts are given jurisdiction, for 
there is no such a thing, in my judgment, as concur- 
rent jurisdiction between the two courts in the same 
county. The jurisdiction of the latter courts is 
clearly exclusive." 

Klokke v. Dodge, 103 111. 135. 

JUSTICES OF THE PEACE AND CONSTABLES. 

Sec. 21. Justices of the peace, police magistrates, 
and constables shall be elected in and for such dis- 
tricts as are, or may be, provided by law, and the juris- 
diction of such justices of the peace and police magis- 
trates shall be uniform. 

"Sec. 21 of Article 6 of the Constitution of 1870, 
provides for the election of police magistrates and 
justices of the peace ; here any other mode of election 
would be unconstitutional. ' ' 

McPhail v. The People, 56 111. App. 293. 



144 



state's attorneys. 



Sec. 22. At the election for members of the gen- 
eral assembly in the year of our Lord 1872, and every 
four years thereafter, there shall be elected a state's 
attorney in and for each county, in lieu of the state's 
attorneys now provided by law, whose term of office 
shall be four years. 

COURTS OF COOK COUNTY. 

Sec. 23. The County of Cook shall be one judicial 
circuit. The Circuit Court of Cook County shall con- 
sist of five judges, until their number shall be in- 
creased, as herein provided. The present judge of 
the recorder's court of the city of Chicago, and the 
present judge of the Circuit Court of Cook County, 
shall be two of said judges, and shall remain in office 
for the terms for which they were respectively elected, 
and until their successors shall be elected and quali- 
fied. The Superior Court of Chicago shall be con- 
tinued, and called the Superior Court of Cook county. 
The general assembly may increase the number of said 
judges, by adding one to either of said courts for 
every additional 50,000 inhabitants in said county, 
over and above a population of 400,000. The terms 
of office of the judges of said courts hereafter elected, 
shall be six years. 

"Section 23 provides that the Superior Court of 
Chicago shall be continued, and called the Superior 
Court of Cook County ; but this does not bring the Su- 
perior Court within the terms of the exception, as 
judges of the Superior Court and judges of the Cir- 
cuit Court exercise the same powers, and, under the 
constitution, are placed upon the same footing. 
({Jones v. Albee, 70 111. 34; Samuel v. Agnew, 80 id. 
553). Indeed, under the constitution, there is no dis- 
tinction, except in name, between the Superior Court 
of Cook County and the Circuit Court of Cook County. 
Both courts have the same jurisdiction and exercise 
the same powers." 



145 

"It is not questioned that the circuit courts of Cook 
county are of the same class or grade as the circuit 
courts in the rest of the State. Nor is it denied that 
a circuit court outside of Cook county has jurisdiction 
of an action quasi criminal in character, like this 
action. If, then, as held in the case cited, the constitu- 
tion, of itself, established uniformity in the powers 
and practice of all the circuit courts of the State, the 
question involved would seem to be free from diffi- 
culty. In order to hold that the Circuit Court of Cook 
County has no jurisdiction of this action, it must be 
held that the circuit courts of that county are of a 
different grade from the circuit courts in the other 
counties of the State, which can not be done; and in 
addition to this, section 29 of article 6, of the constitu- 
tion, must be disregarded. This we are not prepared 
to do." 

Berkowitz v. Lester, 121 111. 102-103. 

Sec. 24. The judge having the shortest unexpired 
term shall be chief justice of the court of which he is 
a judge. In case there are two or more whose terms 
expire at the same time, it may be determined by lot 
which shall be chief justice. Any judge of either of 
said courts shall have all the powers of a circuit judge, 
and may hold the court of which he is a member. 
Each of them may hold a different branch thereof at 
the same time. 

"When holding* court each juds:e should hold a sep- 
arate branch, and keep and in all things perform the 
duties of a circuit judsre. The record should show 
that he alone was presiding, unconnected with either 
or any of the other judges of either court. The record 
of the business he may transact should state that he 
was present holding a branch court, and should not 
state that any other judge was present. It does not 
matter whether the journal of the proceedrnars of the 
several judges is entered in one or several books, so 
that it shows what is done by each. 

One judge may settle a portion of the pleadings, or 
decide motions in a case, and another judge may settle 



146 

other portions of the pleadings and decide other mo- 
tions, and another judge may try the case, or all may 
be done by one judge, so the record shows what was 
done by each judge in the case. There is no law now 
in force authorizing all the judges to sit together, and 
try and decide cases. The law contemplates the action 
of but one judge, sitting at the same time, in the trial 
of a case. And it is error for more than one to sit 
at the same time on the trial of the case, but it is only 
an error, that may be waived or released." 
Hall v. Hamilton, 74 111. 440. 

Sec. 25. The judges of the superior and circuit 
courts, and the state's attorney, in said county, shall 
receive the same salaries, payable out of the state 
treasury, as is or may be paid from said treasury to 
the circuit judges and state's attorneys of the state, 
and such further compensation, to be paid by the 
County of Cook, as is or may be provided by law; such 
compensation shall not be changed during their con- 
tinuance in office. 

Sec. 26. The recorder's court of the City of Chi- 
cago shall be continued, and shall be called the ' ' Crim- 
inal Court of Cook County." It shall have the juris- 
diction of a circuit court, in all cases of criminal and 
quasi criminal nature, arising in the county of Cook, 
or that may be brought before said court pursuant to 
law; and all recognizances and appeals taken in said 
county, in criminal and quasi criminal cases, shall be 
returnable and taken to said court. It shall have no 
jurisdiction in civil cases, except in those on behalf of 
the people, and incident to such criminal or quasi 
criminal matters, and to dispose of unfinished busi- 
ness. The terms of said Criminal Court of Cook 
County shall be held by one or more of the judges of 
the Circuit or Superior Court of Cook county, as 
nearly as may be in alternation, as may be determined 
by said judges, or provided by law. Said judges shall 
be ex officio judges of said court. 

' ' The Criminal Court, however, is limited in its juris- 



147 

diction by our present constitution. It provides that 
it shall have the jurisdiction of a circuit court in all 
cases of a criminal and quasi criminal nature, arising 
in the county of Cook, etc. And all recognizances and 
appeals taken in that county in criminal and quasi 
criminal cases, shall be returnable and taken to that 
court. It is, then, necessary to determine whether 
this case is of a quasi criminal nature, as it is not 
claimed to be criminal. Wharton, in his Law Lexicon, 
defines quasi crime to be the act of doing damage or 
evil involuntarily. But this can not be the sense in 
which the framers of our constitution intended to use 
the term. When the entire section is considered, in 
the light of our jurisprudence, we must conclude that 
it was intended to embrace all offenses not crimes or 
misdemeanors, but that are in the nature of crimes — a 
class of offenses against the public which have not 
been declared crimes, but wrongs against the general 
or local public which it is proper should be repressed 
or punished by forfeitures and penalties. This would 
embrace all qui tarn actions and forfeitures imposed 
for the neglect or violation of a public duty. A quasi 
crime would not embrace an indictable offense, what- 
ever might be its grade, but simply forfeitures for the 
wrong done to the public, whether voluntary or in- 
voluntary where a penalty is given, whether recover- 
able by criminal or civil process; and it would em- 
brace prosecutions for bastardy, and informations in 
the nature of a quo warranto, etc." 

Wiggins v. City of Chicago, 68 111. 375. 



"The term quasi criminal embraces all offenses not 
crimes or misdemeanors, but which are in the nature 
of crimes — a class of offenses against the public which 
have not been declared to be crimes, but wrongs 
against the local or general public which it is proper 
should be punished by forfeitures or penalties. A 
quasi crime does not embrace an indictable offense, 
whatever be its grade, but simply forfeitures for a 
wrong done to the public, whether voluntary or in- 
voluntary, where a penalty is given, whether 
recoverable by civil or criminal process. Actions to 



148 

recover a penalty are in their nature quasi criminal 
prosecutions." 

Tully v. Town of Northfield, 6 111. App. 359. 

Sec. 27. The present clerk of the Becorder's Court 
of the city of Chicago shall be the clerk of the Crim- 
inal Court of Cook County, during the term for which 
he was elected. The present clerks of the Superior 
Court of Chicago, and the present clerk of the Circuit 
Court of Cook County, shall continue in office during 
the terms for which they were respectively elected; 
and thereafter there shall be but one clerk of the Su- 
perior Court, to be elected by the qualified electors of 
said county, who shall hold his office for the term of 
four years, and until his successor is elected and quali- 
fied. 

Sec. 28. All justices of the peace in the city of Chi- 
cago shall be appointed by the Governor, by and with 
the advice and consent of the senate, (but only upon 
the recommendation of a majority of the judges of the 
Circuit, Superior and County Courts,) and for such 
districts as are now or shall hereafter be provided by 
law. They shall hold their offices for four years, and 
until their successors have been commissioned and 
qualified, but they may be removed by summary pro- 
ceeding in the Circuit or Superior Court, for extortion 
or other malfeasance. Existing justices of the peace 
and police magistrates may hold their offices until the 
expiration of their respective terms. 

GENEKAL PKOVISIONS. 

Sec. 29. All judicial officers shall be commissioned 
by the governor. All laws relating to courts shall be 
general, and of uniform operation; and the organiza- 
tion, jurisdiction, powers, proceedings and practice of 
all courts, of the same class or grade, so far as regu- 
lated by law, and the force and effect of the process, 
judgments and decrees of such courts, severally, shall 
be uniform. 



149 

"We can not regard this provision as only a guide 
and direction to future legislatures in the enactment 
of laws concerning the practice of the courts. The 
courts of Cook County are 'of the same class or grade* 
as the courts throughout the State, and are embraced 
within the provision of the constitution. 

What was the object of the constitution, and what 
the evil intended to be remedied? Prior to the adop- 
tion of the constitution, the legislature had repeatedly 
enacted special laws regulating the practice in differ- 
ent circuits; and in the different parts of the State 
the proceedings and practice of the courts were not 
only not uniform, but were as diverse as though the 
several circuits of the State were under different 
governments and controlled by enactments of differ- 
ent legislatures. It was intended to abrogate all this 
special legislation, and establish uniformity in the 
powers, proceedings and practice of all the courts of 
the state of the same class or grade. 

This could only be effected by a repeal of this special 
legislation. So long as it existed, the uniformity in- 
tended could not be established. The framers of the 
constitution certainly never intended that the repeal 
should await the action of the legislature. If the 
legislature refuse or neglect to act, then the evil con- 
tinues. A constitution designed to remove an exist- 
ing mischief should never be construed as dependent 
for its efficacy and operation upon legislative will. 

We are of opinion that this provision of the consti- 
tution executed itself, and operated in praesenti." 
The People v. Rurnsey, 64 111. 45. 
O'Connor v. Leddy, 64 111. 300. 

"This section of the constitution abrogated all 
special or local laws regulating the powers, proceed- 
ings and practice of the courts of this State at the time 
of its adoption.' ' 

Mitchell v. The People, 70 111. 141. 

"Constitutions, like all other laws, must have a 
reasonable and practical interpretation. To give this 
language a literal application, would require all courts 
in the State to meet on the same day, and the terms to 



150 

be of the same length. This could not have been in- 
tended, because it must have been apparent to the 
framers of that instrument that such a thing could 
never be carried into effect. The business in one cir- 
cuit or one county would be manifold greater than in 
another ; hence more time would be required in the one 
than in the other. The circumstances of the people, 
the difference in climate in different portions of our 
State, and a variety of circumstances, render it almost 
if not absolutely necessary that our courts should meet 
at different times. 

It would seem that a literal application of this lan- 
guage would require all laws to apply to the supreme, 
circuit, county, city and justices ' courts, and to be 
general and uniform. That all of these courts should 
be required to meet at the same time, and have terms 
of the same length, would be an absurdity that we can 
not attribute to the body of men who framed our 
fundamental law. Without stopping to inquire to 
what this language should be confined, we have no 
hesitation in saying that it can not apply to the time 
when these several courts shall meet, or the length of 
their terms. Nor do we see that the remaining lan- 
guage of that section makes such a requirement. This 
objection is therefore not well taken. ,, 
Karnes v. The People, 73 111. 276. 

Sec. 30. The general assembly may, for cause 
entered on the journals, upon due notice and oppor- 
tunity of defense, remove from office any judge, upon 
concurrence of three-fourths of all the members 
elected, of each house. All other officers in this 
article mentioned shall be removed from office on pros- 
ecution and final conviction for misdemeanor in office. 

Sec. 31. All judges of courts of record, inferior to 
the Supreme Court, shall, on or before the first day 
of June, of each year, report in writing to the judges 
of the Supreme Court such defects and omissions in 
the laws as their experience may suggest; and the 
judges of the Supreme Court shall, on or before the 
first day of January of each year, report in writing to 
the governor such defects and omissions in the consti- 



151 

tution and laws as they may find to exist, together 
with appropriate forms of bills to cure snch defects 
and omissions in the laws. And the judges of the sev- 
eral circuit courts shall report to the next general as- 
sembly the number of days they have held court in the 
several counties composing their respective circuits, 
the preceding two years. 

Sec. 32. All officers provided for in this article 
shall hold their offices until their successors shall be 
qualified, and they shall, respectively, reside in the 
division, circuit, county or district for which they may 
be elected or appointed. The terms of office of all 
such officers, where not otherwise prescribed in this 
article, shall be four years. All officers, where not 
otherwise provided for in this article, shall perform 
such duties and receive such compensation as is or 
may be provided by law. Vacancies in such elective 
offices shall be filled by election; but where the unex- 
pired term does not exceed one year, the vacancy shall 
be filled by appointment, as follows: Of judges, by 
the governor ; of clerks of courts, by the court to which 
the office appertains, or by the judge or judges there- 
of ; and of all such other offices, by the board of super- 
visors or board of county commissioners in the county 
where the vacancy occurs. 

An election must be called in all cases where the un- 
expired term of office is more than a year, whether due 
to the original length of term or to an extension 
thereof. 

People v. Kingsbury, 100 111. 509. 

Sec. 33. All process shall run : In the name of the 
People of the State of Illmois; and all prosecutions 
shall be carried on : In the name and by the authority 
of the People of the State of Illinois; and conclude: 
Against the peace and dignity of the same. "Popula- 
tion," wherever used in this article, shall be deter- 
mined by the next preceding census of this State, or of 
the United States. 



152 

"The constitution, article 8, section 33, provides, 
that 'all prosecutions shall be carried on in the name 
and by the authority of the People of the State of 
Illinois,' and conclude 'against the peace and dignity 
of the same. ' There can not be the slightest pretense 
that there was any effort in this case at a compliance 
with this provision of the constitution. In fact, there 
is nothing that even resembles conformity. It seems 
that there has been an entire disregard both of legal 
and constitutional requirements in preparing the in- 
formation in this case. ' ' 

Parris v. The People, 76 111. 277. 

"It is also maintained by appellant, that the sale 
under the foreclosure proceeding is absolutely void, 
for the reason the special execution under which it 
was made did not run in the name of the People of the 
State of Illinois, as required by the constitution. In 
answer to this objection, appellee insists that a special 
execution like the one in question is not, within the 
meaning of the constitution," process. We can not 
yield our assent to this position. The authorities cited 
by appellee in support of it are not in point, and do 
not, in our judgment, in the slighest degree tend to 
sustain it. We are clearly of opinion that the writ in 
question is process within the meaning of that provis- 
ion of the constitution. ' ' 

Sidwell v. Schumacher, 99 111. 432. 

"The defect in the writ is very apparent. It does 
not run in the name of 'The People of the State of 
Illinois,' as the constitution declares all writs and 
process shall run. The writ is void on its face, and 
the objection can be raised by general demurrer, 
though it would be more proper to reach it by motion 
to quash.' ' 

McFadden v. Fortier, 20 111. 515. 



153 

AETICLE VII. 

SUFFKAGE. 

Sec. 1. Every person having resided in this state 
one year, in the connty 90 days, and in the election dis- 
trict 30 days next preceding any election therein, who 
was an elector in this State on the first day of Apri], 
in the year of onr Lord 1848, or obtained a certificate 
of naturalization before any conrt of record in this 
State prior to the first day of January, in the year of 
our Lord 1870, or who shall be a male citizen of the 
United States, above the age of 21 years, shall be en- 
titled to vote at such election. 

"The testimony with regard to the others, Eding- 
ton, Goodwin and Matthews, was to much the same 
effect as that in respect to Halbrook, as regards mental 
capacity. The evidence shows that for some years 
Matthews has, at times, labored under some kind of 
illusion or hallucination, but not to such an extent as 
to incapacitate him from the general management of 
his business. This hallucination does not seem to 
have at all extended to political matters, and the evi- 
dence shows that, on the day of election, he conducted 
himself with entire propriety. As respects the others, 
witnesses testify to peculiarities and eccentricities in- 
dicative of mental deficiency to some extent, but we 
can not think that persons possessing the degree of 
understanding which these are shown to have had, are, 
on the account of mental incapacity, to be denied the 
privilege of the exercise of the elective franchise. We 
can allow to the medical opinions no controlling force, 
but such weight only as we deem them entitled to in 
view of the facts in evidence. We find no error in 
counting these votes for appellee." 
Clark v. Robinson, 88 111. 503. 

"Under section 1, article 7, of our constitution, 
every male citizen of the United States above the age 
of twenty-one years, who has resided in the State one 
year, in the county ninety days and in the election dis- 
trict thirty days next preceding any election, is en- 



154 

titled to a vote at such election. To exercise this right 
there is one exception, and hut one, so far as we have 
been able to find; and that is fonnd in section 7 of the 
same article, which declares that the general assembly 
shall pass laws excluding from the right of suffrage 
persons convicted of infamous crimes." 
Banner v. Patton, 155 111. 563. 

Sec. 2. All votes shall be by ballot. 

Sec. 3. Electors shall, in all cases, except treason, 
felony, or breach of the peace, be privileged from ar- 
rest during their attendance at elections, and in going 
to and returning from the same. And no elector shall 
be obliged to do military duty on the days of election, 
except in time of war or public danger. 

Sec. 4. No elector shall be deemed to have lost his 
residence in this State by reason of his absence on 
business of the United States, or of this State, or in 
the military or naval service of the United States. 

Sec. 5. No soldier, seaman or marine in the army 
or navy of the United States, shall be deemed a resi- 
dent of this State in consequence of being stationed 
therein. 

Sec. 6. No person shall be elected or appointed to 
any office in this State, civil or military, who is not a 
citizen of the United States, and who shall not have 
resided in this State one year next preceding the elec- 
tion or appointment. 

Sec. 7. The general assembly shall pass laws ex- 
cluding from the right of suffrage persons convicted 
of infamous crimes. 

AETICLE VIII. 

EDUCATION. 

Section 1. The general assembly shall provide a 
thorough and efficient system of free schools, whereby 
all children of this State may receive a good common 
school education. 



155 

The free schools of the State are public institutions, 
and in their management and control the law contem- 
plates that they shall be so managed that all children 
between the ages of six and twenty-one years, regard- 
less of race or color, shall have equal and the same 
right to participate in the benefits to be derived there- 
from. 

Chase v. Stephenson, 71 111. 385. 

Under the laws of Illinois, aside from the fourteenth 
amendment of the Federal Constitution, school officers 
cannot deny a pupil admission to the public schools on 
account of nationality, religion, or color. They all 
stand equal under the law. 

People v. Board of Education of Quincy, 101 111. 
308. 

By the statutes of this State, the duty of providing 
schools for the education of all children between the 
ages of six and twenty-one in their district is imposed 
upon the respondents, and is incumbent upon them by 
virtue of their office. 

People v. Board of Education of Upper Alton, 

127 111. 625. 
People v. Board of Education of Upper Alton, 
221 111. 275. 

All the youths are equal before the law, and there is 
no discretion vested in the board of directors or else- 
where to interfere with or disturb that equality. 

People v. Mayor of Alton, 193 111. 315. 

People v. Mayor of Alton, 209 111. 461. 

As the constitution is silent on this subject, it is evi- 
dently left to the wisdom of the General Assembly to 
declare what constitutes a good common school educa- 
tion. No doubt that body would be bound to conform 
to the popular understanding in that respect. With- 
out being able to give any accurate definition of a 
"common school," it is safe to say that the common 
understanding is, it is a school that begins with the 
rudimental elements of an education, whatever else it 
may embrace, as contradistinguished from academies 



156 

or universities devoted exclusively to teaching ad- 
vanced pupils in the classics, and in all the higher 
branches of study usually included in the curriculum of 
the college. 

This section does not prohibit the teaching of Ger- 
man and other modern languages in the common 
schools. 

Powell v. Board of Education, 97 111. 375. 

Above section is intended as a limitation upon the 
power of the legislature to provide for the mainte- 
nance, by local taxation, of free schools of a character 
different from that named in the section. 

Legislative provisions for the maintenance of high 
schools as a part of the common school system do not 
violate this section of the constitution. 
Richards v. Raymond, 92 111. 613. 

The legislature has sole discretion to determine the 
mode in which the common school system shall be or- 
ganized, and the officers by whom it shall be controlled, 
and administered, except as to state and county super- 
intendents, for whose election the constitution pro- 
vides. 

Plummer v. Yost, 144 111. 68. 

This section cannot be nullified by refusal or failure 
of board of directors to build school house or furnish 
school rooms. Above section is mandatory. 

Millard v. Board of Education, 121 111. 297. 

Normal schools being a recognized method of ad- 
vancing the interests of the common school system, the 
establishment of which is mandatorily required of the 
General Assembly, it follows that the legislature has 
power to establish and provide for the maintenance of 
the same. 

Boehm v. Hertz, 182 111. 163. 

Sec. 2. All lands, moneys, or other property, do- 
nated, granted or received for schools, college, sem- 
inary or university purposes, and the proceeds, there- 
of, shall be faithfully applied to the objects for which 
such gifts or grants were made. 



157 

School corporations, as the trustees of school prop- 
erty, are wholly within the control of the General As- 
sembly, and may be changed at its pleasure. Neither 
the grant of the sixteenth section of land by the United 
States to this State, for the use of schools, nor the 
above section of the constitution, prevent the legis- 
lature from taking the control of school property from 
the educational board of one township and vesting it 
in a different board. 

Cravener v. Board of Education, 133 111. 145. 

McGum v. Board of Education, 133 111. 122. 

School directors may grant the temporary use of 
school houses, when not occupied by schools for relig- 
ious meetings and Sunday schools, for evening schools, 
for literary societies and such other meetings as it may 
deem proper, without violating this section of the con- 
stitution. Religion and religious worship are not so 
placed under the ban of the constitution that they can- 
not become the recipient of an incidental benefit from 
the public authorities. 

Nichols v. School Directors, 93 111. 61. 

The above section was intended to protect the public 
school fund of the State, and not mere private dona- 
tions to educational institutions or to private corpora- 
tions created for educational purposes. 

University of Chicago v. The People, 118 111. 567. 

Sec. 3. Neither the general assembly nor any 
county, city, town, township, school district, or other 
public corporation, shall ever make any appropriation 
or pay from any public fund whatever, anything in aid 
of any church or sectarian purpose, or to help support 
or sustain any school, academy, seminary, college, uni- 
versity, or other literary or scientific institution, con- 
trolled by any church or sectarian denomination what- 
ever; nor shall any grant or donation of land, money 
or other personal property ever be made by the State 
or any such public corporation, to any church, or for 
any sectarian purpose. 



158 

The county boards in this State have no power to ap- 
propriate county funds in aid or support of sectarian 
schools, or of any school controlled by a church or re- 
ligious denomination, as that is prohibited in express 
terms by section 3 of article 8 of the constitution. 

Stevens v. St. Mary's Training School, 144 111. 
337. 

The fact that an institution of learning teaches the 
doctrines of a particular church or religious sect, and 
that all exercises of a religious character are those of 
such church, will render the institution sectarian within 
the meaning of section 3 of article 8 of the constitu- 
tion, prohibiting the payment from any public fund of 
anything in aid of any church or sectarian purpose, 
although all of its pupils may not be instructed in such 
doctrines. 

County of Cook v. Chicago Industrial School for 
Girls, 125 111. 540. 

The Chicago Industrial School for Girls, a corpora- 
tion having no building of its own, placed all girls com- 
mitted to it by the county court in the House of the 
Good Shepherd and St. Joseph's Orphan Asylum (in- 
stitutions under two orders of the Eoman Catholic 
Church), which furnished them with clothing and tui- 
tion and received all pay allowed therefor by the 
county. The officers of the Industrial School were also 
officers of the two institutions above mentioned, and 
the doctrines of the Eoman Catholic Church wer£ 
taught therein to some of their pupils : Held, in a suit 
by the Industrial School against the county to recover 
for the price of tuition and clothing of dependent girls 
committed to its care, that the money sought to be re- 
covered would be a payment in support of schools con- 
trolled by a church and in aid of a sectarian purpose, 
and that the action would not lie. 

County of Cook v. Industrial School for Girls, 
125 111. 541. 

It is the right and duty of every enlightened govern- 
ment as parens patrice to protect and provide for the 
comfort and support of citizens who, by reason of in- 



159 

fancy, defective mentality or other infirmity, are un- 
able to provide for themselves, and all constitutional 
limitations must be so construed and understood as not 
to interfere with the proper and legitimate exercise of 
this function of government. The act of 1879, in aid 
of industrial schools for dependent infant females, does 
not violate the above section of the constitution. 

County of McLean v. Humphreys, 104 111. 379. 

Sec. 4. No teacher, State, county, township, or dis- 
trict school officer shall be interested in the sale, pro- 
ceeds or profits of any book, apparatus or furniture 
used, or to be used, in any school in this State, with 
which such officer or teacher may be connected, under 
such penalties as may be provided by the general as- 
sembly. 

See General School Laiv, R. S. ch. 122, art. XV, 
sec. 13. 

It is a settled doctrine that all negative or prohib- 
itory provisions found in a constitution execute them- 
selves, making void all acts done in violation of such 
provisions, the same as if in violation of express stat- 
utory law. And a statute creating a penalty for doing 
a thing forbidden by the constitution can add nothing 
to the invalidity of the act. 

Law v. The People, 87 111. 385. 

Sec. 5. There may be a county superintendent of 
schools in each county, whose qualifications, powers, 
duties, compensation and time and manner of election, 
and term of office, shall be prescribed by law. 

The act of June 19, 1891, entitling women to vote at 
school elections in this State, does not confer upon 
women the right to vote at an election for county sup- 
erintendent of schools, and so far as it attempts to 
do so, is in violation of the above section of the con- 
stitution. 

People v. English, 139 111. 622. 



160 

The office of county superintendent is created by the 
constitution, and the electors must be those prescribed 
in article 7, section 1, of the constitution. 

Plummer v. Yost, 144 111. 68. 

People v. English, 139 111. 622. 

County superintendents of schools are not members 
of that class of county officers whose compensation is 
to be fixed by the county board, as provided in section 
10 of article 10 of the constitution. The above section 
(section 5, article 8) confers upon the legislature the 
power of fixing their compensation. 

Jamison v. Adams County, 38 111. App. 52. 

The per diem of county superintendents, as fixed by 
the act of 1867, is regarded as compensation and not 
"fees" in the sense in which that term is used in the 
constitution. 

Supervisors of Knox County v. Christianer, 68 
111. 453. 

ARTICLE IX. 

Revenue. 

The general assembly shall provide such revenue as 
may be needful by levying a tax, by valuation so that 
every person and corporation shall pay a tax in pro- 
portion to the value of his, her or its property — such 
value to be ascertained by some person or persons, to 
be elected or appointed in such manner as the general 
assembly shall direct, and not otherwise ; but the gen- 
eral assembly shall have power to tax peddlers, auc- 
tioneers, brokers, hawkers, merchants, commission 
merchants, showmen, jugglers, inn-keepers, grocery 
keepers, liquor dealers, toll bridges, ferries, insurance, 
telegraph and express interests or business, vendors 
of patents, and persons or corporations owning or 
using franchises and privileges, in such manner as it 
shall from time to time direct by general law, uniform 
as to the class upon which it operates. 



161 

"Nor is there any power, expressed or implied, by 
which the courts can fix a valuation, or review the 
action of the assessors. They are invested with the 
sole power, and we are aware of no authority to re- 
view their action. The law has not, nor can it, in view 
of this constitutional provision, empower the courts 
to ^.x the valuation of property for taxation. We re- 
gard no proposition clearer. If the courts may hear 
evidence and change the valuation fixed by the officers 
elected under the law to perform that duty, then it is 
the courts, who are not elected or appointed for the 
purpose, who fix the value, and that would be to make 
the valuation otherwise than is peremptorily required 
by the constitution. For the courts to hear evidence 
and change the valuation fixed by the assessors would 
be in direct and palpable violation of the constitution. 
When those officers have acted it is final, and the tax 
payer must submit to the action of the officer who is 
clothed with the sole power to make the estimate of 
the value, unless he can show it was fraudulently made, 
or that the property assessed was not liable to taxa- 
tion, or the legislature has, in authorizing the tax, 
disregarded or transcended the principles of equality, 
or where a tax has been levied when not authorized by 
law. 

Fraud vitiates all acts, and this as well as others. 
But when the officer acts with a fraudulent purpose to 
the injury of the tax payer, the latter may be relieved 
from the effects of the fraud. And when the officer 
assesses and values property exempt from taxation he 
acts without authority, and all of his acts in excess of 
his power are void. It was the manifest intention of 
the people, in ratifying the constitution, to make the 
action of the assessing officers final; and there are 
cogent reasons for the provision.' ' 

"Governments are created to protect men in their 
natural rights, and with incidental protection to their 
civil or political rights. No means have been devised 
by which government can be maintained without the 
use of revenue, and that revenue must be directly or 
indirectly drawn from the governed. In different or- 
ganizations different modes of acquiring such revenue 
are adopted. In our State the great central idea in 



162 

collecting taxes is that every person owning or having 
property in the State, and having the right to demand 
the aid of the government in its protection, as well as 
his own rights, whether of person, liberty, or prop- 
erty, must contribute to the support of the State gov- 
ernment in proportion to the value of his property. 
The rule embraces corporations or intangible persons 
as well as natural persons. They hold property and 
require its protection and they transact business and 
enter into contracts, and require the power of the State 
to enforce them; and the great principle of natural 
justice demands that all who have the right to com- 
mand and employ the sovereign power of the State 
to protect them in their rights, should contribute to 
the expense of the government, in arming itself with 
means and in sustaining the requisite official force to 
protect them in their rights." 

Republic Life Ins. Co. v. Pollak, 75 111. 295, 296. 

"It is not in the power of the legislature to exempt 
a portion of the inhabitants of the State in any locality 
from State taxes, and impose the entire burden upon 
the remaining portion of the citizens. If the general 
assembly could exempt the minority from taxation for 
State purposes, they could, upon the same principle, 
exempt the majority, and thus a minority of the citi- 
zens might be made to bear the entire burden of the 
expenses of the State government. ' ' 
People v. Barger, 62 111. 455. 

"The framers of our constitution have taken unex- 
ampled pains to affirm the principles of ' equality' and 
' uniformity ' as indispensable to all legal taxation, 
whether general or local." 

The City of Chicago v. Lamed, 34 111. 276. 

"The constitution has not prohibited the general 
assembly from imposing or authorizing the imposition 
of the duty to procure a license to pursue any calling, 
nor has it limited the power or limited its exercise. 
In this respect the power of the legislature is the same 
as it has ever been since the organization of the State 
government, and no one, we presume, will question the 



163 

legislative power to require persons engaged in va- 
rious avocations to procure a license for the purpose, 
and thus regulate the exercise of an avocation. It is 
a power exercised by all governments, and is one of 
the essential means of providing for raising revenue 
for both the State and local governments, and the 
regulation of business. If the constitutional conven- 
tion had intended to make so radical a change as to de- 
prive the legislature of this power, or to make a 
license fee uniform throughout the State on all per- 
sons exercising the same calling, without regard to 
the capital invested, business done or profits realized, 
that body would have employed very different lan- 
guage from that which we find in that instrument. 
They were aware that this court had held that a 
license fee was not a tax, in the constitutional sense, 
and we have a right to suppose they used the term 
'tax,' in a sense to exclude a license.' ' 

Wiggins Ferry Co. v. East St. Louis, 102 111. 
567. 

"That a franchise has a value, and that it may be 
ascertained, is, we think, as clear as that a chose in 
action has a value that may be estimated. In estimat- 
ing its value, more facts may have to be considered, as 
it has no market value. But the very fact that it 
grants rights, privileges and exemptions, not enjoyed 
by individuals generally, makes it desirable and gives 
it value. The length of time the corporation may 
exist, the business to which it relates, its location, and 
a variety of other circumstances, all, of course, enter 
into the value of the privilege, and should be consid- 
ered in ascertaining its value. But that it has a taxa- 
ble value, we entertain no doubt. And if it is prop- 
erty and has value, it, under the constitution, is not 
only liable to be taxed, but is required to be, in some 
appropriate mode." 

Ottawa Glass Co. v. McCaleb, 81 111. 559. 

"It surely can not be doubted that the requirement 
that the Board of Equalization shall ascertain and de- 
termine the fair cash value of the capital stock, includ- 
ing the franchise, of all companies and associations 



164 

now or hereafter created under the laws of this State, 
over and above the assessed value of the tangible prop- 
erty of such company or association, is a general law, 
or that it is uniform as to the class upon which it 
operates. It is not restricted to any particular part 
of the State, nor is it limited to a special tax; it ex- 
tends to the entire State for the purpose of general 
taxation, and it applies the same rule to all within the 
class upon which it operates, namely: the corporations 
now or hereafter created under the laws of this State. ' ' 
Porter v. R. R. I. & St. L. R. Co., 76 111. 579. 

"It is a plain proposition, that property in course 
of transportation from one State to another, over one 
of our navigable rivers, or over any of the public high- 
ways of the country, is not liable to taxation as it 
passes over such highway, by the State authorities 
along the line of such highway, and we think it is 
equally clear, that if property, while in the course of 
transportation over one of our navigable rivers, should 
be detained by low water or ice, or other cause, it 
would not be liable to be taxed by the authorities where 
the detention occurred Any other rule would have a 
direct tendency to obstruct commerce between States, 
which, of course, could not be done under our system 
of laws. ' ' 

Burlington Lumber Co. v. Willetts, 118 111. 562. 

Sec. 2. The specification of the objects and subjects 
of taxation shall not deprive the general assembly of 
the power to require other subjects or objects to be 
taxed in such manner as may be consistent with the 
principles of taxation fixed in this constitution. 

Sec. 3. The property of the state, counties, and 
other municipal corporations, both real and personal, 
and such other property as may be used exclusively 
for agricultural and horticultural societies, for school, 
religious, cemetery and charitable purposes, may be 
exempted from taxation; but such exemption shall be 
only by general law. In the assessment of real estate 
incumbered by public easement, any depreciation oc- 



165 

casioned by such easement may be deducted in the 
valuation of such property. 

"It is not claimed the first objection has the direct 
sanction of the statute in its support, but the conten- 
tion is, such property is expressly exempt from taxa- 
tion, and special assessments are included within the 
meaning of the word taxation. We have been too long 
and too firmly committed to the doctrine that exemp- 
tion from taxation does not exempt from special as- 
sessments, to now admit that it is even debatable. " 

County of McLean v. City of Bloomington, 106 
111. 213. 

"Under this provision of the constitution the legis- 
lature in section 2 of the Eevenue law, proceeded to 
determine what property might be exempt from taxa- 
tion; and as to church property, the section provides 
that all church property actually and exclusively used 
for public worship, when the land (to be of a reason- 
able size for the location of the church building) is 
owned by the congregation. Here the property was 
actually and exclusively used for public worship, and 
it was of a reasonable size for the church building. So 
far, the property falls clearly within the terms of the 
act. But the act contains the further requirement 
that the property, in order to be exempt, must be 
owned by the congregation. This property was not 
owned by the congregation, but the title rested in W. 
Gr. Anderson. The congregation that assembled at 
this church for worship was not organized under the 
statute so as to own real estate, and had no power to 
purchase or own real estate ; but if it had been an or- 
ganized body, so long as Anderson owned the property 
it was subject to taxation. The fact that the building 
on the lots had been dedicated as a church, has no 
bearing on the question. The title to the property 
was not changed by the dedication, but it remained in 
Anderson, as it did before. Anderson did no act 
which changed the ownership of the property, and at 
any time he saw proper the congregation might have 
been excluded from the use of the property.' ' 
The People v. Anderson, 117 111. 54. 



166 

1 1 There is nothing in the record to show that the 
school honse mentioned in the petition may not be a 
private school honse, 'in which are taught, with a view 
to profit, the rndimentary branches of education such 
as are ordinarily taught in the public schools,' ' and, if 
such is the fact, it is subject to taxation. (Montgom- 
ery v. Wymann, 130 111. 17. 

The People v. Ryan, 138 111. 267. 

Sec. 4. The general assembly shall provide, in all 
cases where it may be necessary to sell real estate for 
the non-payment of taxes or special assessments for 
state, county, municipal or other purposes, that a re- 
turn of such unpaid taxes or assessments shall be 
made to some general officer of the county having au- 
thority to receive state and county taxes; and there 
shall be no sale of said property for any of said taxes 
or assessments but by said officer, upon the order or 
judgment of some court of record. 

"The first branch of the section in question enjoins 
upon the legislature the duty of providing that a re- 
turn of all unpaid taxes and assessments be made to 
some general officer of the county having authority to 
receive state and county taxes. The object of this re- 
quirement was undoubtedly the promotion of public 
convenience and economy. 

If the clause had gone no further, then, although the 
duty would have been imposed upon the legislature, 
still it would have been incapable of enforcement by 
any other department of the government, and the only 
guaranty for its performance would have been the 
presumptive regard of the legislative body for the 
mandates of the constitution and the responsibility of 
that body to its constituents. Upon this guaranty 
alone, the people, it seems, did not see fit to rely. But 
as an inducement to prompt action, the prohibition of 
the last clause was added. Its effect began with the 
life of the constitution, and annulled all laws confer- 
ring power upon officers, other than the county officer 
described, to sell real estate for the non-payment of 
any taxes or special assessments." 

Hills v. City of Chicago, 60 111. 91. 



167 

" Section 4, article 9, of the State constitution, con- 
tains no express grant of power to the legislature to 
provide for the sale of real estate for taxes, though it 
clearly recognizes such power, by imposing limitations 
and restrictions upon its exercise. Viewed merely as 
a limitation, as it is, there is nothing in it prohibiting 
the legislature from providing for the sale of real 
estate for the non-payment of taxes, interest and pen- 
alties, and costs, except that the sale shall be made by 
a general officer, authorized to receive State and 
county taxes, and not by him except in pursuance of 
an order of some court of record.' ' 

Chambers v. The People, 113 111. 509. 

Sec. 5. The right of redemption from all sales of 
real estate for the non-payment of taxes or special 
assessments of any character whatever, shall exist in 
favor of owners and persons interested in such real 
estate, for a period of not less than two years from 
such sales thereof. And the general assembly shall 
provide by law for reasonable notice to be given to the 
owners or parties interested, by publication or other- 
wise, of the fact of the sale of the property for such 
taxes or assessments, and when the time of redemp- 
tion shall expire : Provided, that occupants shall in all 
cases be served with personal notice before the time of 
redemption expires. 

"It will be observed the section of the constitution 
we have quoted guarantees the right of redemption 
for the period of two years, and that occupants shall 
in all cases be served with notice before the time of 
redemption expires, and this is fundamental, and 
compliance with it is an indispensable condition prece- 
dent to the right to make a deed. (Holbrook v. Fel- 
lows, 38 111. 440). 

Gage v. Bailey, 100 111. 536. 

"The affidavit is defective, in not, as the statute 
requires, ' stating particularly the facts relied on as 
such compliance ' with the condition of giving notice. 
The constitution requires that occupants shall be served 



168 

with personal notice. It does not appear here that 
there was personal notice served. If there was serv- 
ice of a printed notice, the mode of service might have 
been by sending the notice by mail, or by leaving a copy 
at the residence of the occupant, or delivering it to 
some member of his family. All these are recognized 
modes of notice, and in the idea of the person making 
the affidavit, either of them might have been consid- 
ered a proper manner of service of notice. The affi- 
davit should have followed the requirement of the 
statute, and stated particularly the facts relied on as 
showing service of notice, so that the court might see 
that the mode of service was that which is required by 
the constitution and the statute.' ' 

Price v. England, 109 111. 396. 

"The redemption of lands from a sale for taxes is 
an act authorized to be done by law, — an act that 
seems to fall directly within the terms of the statute. 
If we are correct in this, then as November 3, 1878, 
was Sunday, the time provided for redeeming the 
lands sold on November 3, 1876, did not expire until 
November 4, 1878. The provision of the statute re- 
quiring the purchaser at the tax sale, or his assignee, 
to notify the person in possession of the lands when 
the time of redemption will expire, is imperative, and 
a notice which specifies a wrong date can not be re- 
garded as any notice whatever, within the meaning of 
the statute." 

Gage v. Davis, 129 111. 240. 

Sec. 6. The general assembly shall have no power 
to release or discharge any county, city, township, 
town or district whatever, or the inhabitants thereof, 
or the property therein, from their or its proportion- 
ate share of taxes to be levied for state purposes, nor 
shall commutation for such taxes be authorized in any 
form whatsoever. 

"No words that we can conceive can add force or 
precision to the language of the constitution before 
quoted, that 'the general assembly shall have no power 
to release or discharge any county, city, township, 



town or district whatever, or the inhabitants thereof, 
or the property therein, from their or its propor- 
tionate share of taxes to be levied for State purposes/ 
Even the general assembly, which levied the present tax, 
derived its existence from the provisions of the same 
constitution; and if this provision was not binding 
upon it, it is impossible to conceive that it ever can 
have any obligatory force. It is impossible for us to 
escape the conclusion that, under the constitution and 
law now in force, so much of the act of 1869 as re- 
quires the State revenue to be collected on the valua- 
tions of the taxable property in the State remaining 
after deducting, in counties, townships, cities and 
towns which have outstanding indebtedness incurred 
in aid of the construction of railroads, the increased 
valuation of the taxable property over that of the year 
1868, is abrogated, and can not be enforced/ ' 
Ramsey v. Hoeger, 76 111. 444. 

"If the insolvent laws can be held to have the effect 
of releasing either persons or property from taxation, 
they are to that extent unconstitutional, for by section 6, 
article 9, of the constitution, the general assembly is 
denied the power to release any person or property 
from his or its proportionate share of taxes levied for 
State purposes. The State, then, still having the 
right to subject this property in the hands of the as- 
signees to the payment of these taxes, after the tax 
books were placed in the hands of the collector, a lien 
in its favor attached, and thereafter there is no pre- 
tense that anything occurred to divest the right of the 
State.' ' 

Jack v. Weiennett, 115 111. 111. 

Sec. 7. All taxes levied for state purposes shall be 
paid into the state treasury. 

Sec. 8. County authorities shall never assess taxes, 
the aggregate of which shall exceed 75 cents per $100 
valuation, except for the payment of indebtedness ex- 
isting at the adoption of this constitution, unless au- 
thorized by a vote of the people of the county. 



170 

"The claim of the bill is, that when the county 
authorities have once exercised the power to assess a 
tax in addition to the 75 cents on the $100 valuation, 
to pay off county indebtedness existing at the time of 
the adoption of the constitution, and have assessed 
taxes to the full amount of such indebtedness, and the 
same have been paid by the tax-payers, then such 
power of assessment becomes exhausted, and can not 
be exercised afterward, even though such taxes may 
have been by the county authorities diverted from and 
not applied to the purpose for which they were as- 
sessed and collected. 

We are unable to concur in this view. So long as 
there be county indebtedness which was existing at the 
time of the adoption of the constitution, there may be 
exercised this power to assess a tax in addition to 75 
cents on the $100 valuation, for the purpose of the 
payment of such indebtedness." 

County of Pope v. Sloan, 92 111. 180. 

Sec. 9. The general assembly may vest the corpo- 
rate authorities of cities, towns and villages with power 
to make local improvements by special assessment, or 
by special taxation of contiguous property, or other- 
wise. For all other corporate purposes, all municipal 
corporations may be vested with authority to assess 
and collect taxes; but such taxes shall be uniform in 
respect to persons and property, within the jurisdic- 
tion of the body imposing the same. 

"The 9th section of article nine of the constitution, 
in authorizing taxes to be laid and collected by mu- 
nicipal corporations, provides that such taxes shall be 
uniform in respect to persons and property within the 
jurisdiction imposing the same. To secure that uni- 
formity, two things are essential: First, the assess- 
ments shall be just and equal, in proportion to the 
value of the property liable to assessment; and, sec- 
ondly, when thus assessed, the rate shall be uniform 
as to every person, and on every species of property 
returned by the assessor for taxation. And the con- 
stitution intends that the uniform value shall be ascer- 
tained by one officer, — the uniform rate imposed by a 



171 

different set of officers, or a different person. If the 
abatement of the assessment was from property liable 
to taxation, then there was a palpable violation of duty 
by the village council, as no such power is conferred 
upon them by the general assembly, nor could they 
supply the want of power by ordinance. That could 
only be done by the general assembly, the source of 
power, when not restricted by the constitution. ' ' 

Sherlock v. Village of WinnetJca, 68 111. 534. 

"Special taxation of contiguous property for local 
improvements is a thing in its object and character 
very different from general taxation for the purpose 
of revenue, and a thing very different from local taxa- 
tion by municipal corporations for revenue to be ap- 
plied to other corporate purposes. All taxation for 
revenue, whether by the State or municipal corpora- 
tion, must be uniform in respect to persons and prop- 
erty within the jurisdiction of the body imposing the 
same. ' ' 

Special taxation, as spoken of in the constitution, is 
based upon the supposed benefit to the contiguous 
property, and differs from special assessments only in 
the mode of ascertaining the benefits. In special taxa- 
tion, the imposition of the tax is of itself a determina- 
tion that the benefits to contiguous property will be as 
great as the burden imposed, while in the case of spe- 
cial assessments, the property to be benefited must be 
ascertained by careful investigation, and the burden 
must be distributed according to a carefully ascer- 
tained proportion in which each part thereof will be 
beneficially affected." 

Craw v. Village of Tolono, 96 111. 256. 

"By virtue of this constitutional provision, cor- 
porate authorities of towns, cities and villages may be 
clothed with power to make local improvements in 
both ways, — either by special assessments of benefits 
or by special taxation of contiguous property, — there- 
by preserving the principle of equality in bearing the 
public burthen, in respect of all persons and property 
affected by the exercise of the power. And this was, 



172 

we think, the evident intent in adopting this provis- 
ion. ' ' 

Kuehner v. City of Freeport, 143 111. 101. 

"A local improvement, within the meaning of the 
statute, is a public improvement which by reason of 
its being confined to a locality, enhances the value of 
adjacent property, as distinguished from benefits dif- 
fused by it throughout the municipality. The only 
basis upon which either special assessment or special 
taxation can be sustained is, that from the proposed 
local improvement the property subjected to the tax 
or assessment will be enhanced in value to the extent 
of the burthen imposed. If, therefore, from an in- 
spection of the ordinance authorizing the making of 
the improvement, it appears from the nature of the 
work proposed that the market value of abutting or 
adjacent property would not be increased thereby, as 
a matter of law it would not be a local improvement, 
within the meaning of the statute, and no declaration 
of the corporate authorities could make it so. On the 
other hand, if the property is or may be benefited by 
the improvement, the extent of such benefit, and hence 
the amount to be assessed upon the property in pro- 
ceedings for special assessment, is a question of fact, 
to be determined in the mode prescribed by the stat- 
ute.' ' 

City of Chicago v. Blair, 149 111. 314. 

Sec. 10. The general assembly shall not impose 
taxes upon municipal corporations, or the inhabitants 
or property thereof, for corporate purposes, but shall 
require that all the taxable property within the limits 
of municipal corporations shall be taxed for the pay- 
ment of debts contracted under authority of law, such 
taxes to be uniform in respect to persons and prop- 
erty, within the jurisdiction of the body imposing the 
same. Private property shall not be liable to be taken 
or sold for the payment of the corporate debts of a 
municipal corporation. 

' ' The constitution, in providing for the organization 



173 

of counties and county government, also contemplates 
that there will be local governments for public pur- 
poses, designated as cities, towns, villages, school dis- 
tricts, and 'other municipal corporations/ But there 
is no specification of the powers that shall be con- 
ferred upon either, and no prohibition of the with- 
drawal of powers once conferred, and thereafter con- 
ferring them upon another. In these respects the 
present constitution does not differ from the constitu- 
tions of 1818 and 1848. 

If the legislature may vest the power in cities, towns 
and villages to construct sewers, drains, etc., for san- 
itary purposes, and may also create a corporation 
within the county and invest it with like power, it fol- 
lows that it may create a corporation including both 
city and county, and invest it with power to secure the 
public health by means of sewers and channels, or 
drains. ' ' 

Wilson v. Board of Trustees, 133 111. 443. 

Sec. 11. No person who is in default, as collector 
or custodian of money or property belonging to a mu- 
nicipal corporation, shall be eligible to any office in or 
under such corporation. The fees, salary or compen- 
sation of no municipal officer who is elected or ap- 
pointed for a definite term of office, shall be increased 
or diminished during such term. 

The power of fixing the compensation of county 
superintendents is vested in the legislature by article 
VIII, section 5 of the constitution, and they do not be- 
long to that class of officers whose compensation is to 
be fixed by the county board. 

Jimison v. Adams County, 130 111. 558. 

Sec. 12. No county, city, township, school district, 
or other municipal corporation, shall be allowed to be- 
come indebted in any manner or for any purpose, to 
an amount, including existing indebtedness, in the ag- 
gregate exceeding five per centum on the value of the 
taxable property therein, to be ascertained by the last 



174 

assessment for state and county taxes, previous to the 
incurring of such indebtedness. Any county, city, 
school district, or other municipal corporation, incur- 
ring any indebtedness as aforesaid, shall before, or at 
the time of doing so, provide for the collection of a 
direct annual tax sufficient to pay the interest on such 
debt as it falls due, and also to pay and discharge the 
principal thereof within twenty years from the time 
of contracting the same. This section shall not be 
construed to prevent any county, city, township, 
school district, or other municipal corporation, from 
issuing their bonds in compliance with any vote of the 
people which may have been had prior to the adop- 
tion of this constitution in pursuance of any law pro- 
viding therefor. 



1 ' There is no difficulty in ascertaining the natural 
signification of the words employed in the clause of 
the constitution under consideration, and to give them 
that meaning involves no absurdity or contradiction 
with other clauses of the constitution. The prohibi- 
tion is against becoming indebted — that is, voluntarily 
incurring a legal liability to pay, 'in any manner or 
for any purpose/ when a given amount of indebted- 
ness has previously been incurred. It could hardly be 
probable that any two individuals of average intelli- 
gence could understand this language differently. It 
is clear and precise, and there is no reason to believe 
the convention did not intend what the words convey. 

A debt, payable in the future, is, obviously, no less 
a debt than if payable presently; and a debt payable 
upon a contingency, as, upon the happening of some 
event, such as the rendering of service or the delivery 
of property, etc., is some kind of a debt, and therefore 
within the prohibition. If a contract or undertaking 
contemplates, in any contingency, a liability to pay, 
when the contingency occurs the liability is absolute — 
the debt exists — and it differs from a present, un- 
qualified promise to pay, only in the manner by which 
the indebtedness was incurred. And, since the pur- 
pose of the debt is expressly excluded from considera- 



175 

tion, it can make no difference whether the debt be for 
ncessary current expenses, or for something else." 
City of Springfield v. Edwards, 84 111. 632. 

"A city, whose corporate indebtedness has reached 
the constitutional and statutory limit of five per cent 
of the assessed value of property within its limits for 
taxation, is prohibited from borrowing money and giv- 
ing evidences of indebtedness therefor, although taxes 
have been levied to meet their payment, and such evi- 
dences are void. The city can not incur corporate in- 
debtedness in anticipation of the collection of taxes 
levied.' ' 

Fuller v. City of Chicago, 89 111. 282. 

' 'When a city has reached its constitutional limit of 
indebtedness, so that the creation of additional evi- 
dences of indebtedness is prohibited, in respect to a 
warrant drawn on its treasurer in anticipation of a 
tax already levied but not yet collected, not payable 
generally, but out of a special fund, and that only 
when it is collected, the general rule of construction as 
to liability of individuals will not be applied, but such 
warrant will be construed with reference to the law 
applying to such a state of case as though the same 
were incorporated in it, and held not to create any cor- 
porate liability.' ' 

Fuller v. Heath, 89 111. 298. 

"By section 12, article 9, of the constitution of 1870, 
a city or other municipal corporation is absolutely 
prohibited from becoming indebted, in any manner or 
for any purpose to an amount including existing in- 
debtedness, in the aggregate exceeding five per centum 
on the value of the taxable property therein, etc. Un- 
der this provision, when such municipality shall have 
reached the limit prescribed by the constitution, it is 
prohibited from making any contract whereby an in- 
debtedness is created, even for the necessary current 
expenses in the administration of the affairs and gov- 
ernment of the corporation.' ' 

Prince v. City of Quincy, 105 HI. 138. 



176 

' ' This provision is also in conflict with those por- 
tions of the charter of East St. Louis, which limit the 
rate of annual taxation to any other percentage than 
that which is sufficient to pay the interest as it falls 
due, etc. Consequently it repeals and abrogates such 
portions of the charter and must be substituted for 
them in the charter itself. Its effects began with the 
life of the constitution and annulled all previous char- 
ter limitations inconsistent with it in relation to in- 
debtedness incurred after the adoption of the constitu- 
tion.' J 

City of East St. Louis v. The People, 124 111. 
664. 

"This language leaves nothing for construction, ex- 
cept to ascertain what it is ' to become indebted ' in the 
sense here intended, for none that could be employed 
would be more apt to show that upon all such con- 
tract liabilities as are within its purview, this provis- 
ion operates with only one effect, which is to disallow 
them. It is too plain for argument, that it does not 
classify them as non-payable and payable-out-of-spe- 
cial- funds, or otherwise, nor change any from being a 
charge against the city generally, into a charge 
against its current revenue only, but makes them all 
alike absolutely non-payable and void." 

Prince v. City of Quincy, 128 111. 453. 

Sec. 13. The corporate authorities of the city of 
Chicago, are hereby authorized to issue interest-bear- 
ing bonds of said city to an amount not exceeding five 
million dollars at a rate of interest not to exceed five 
per centum per annum, the principal payable within 
thirty years from the date of their issue, and the pro- 
ceeds thereof shall be paid to the treasurer of the 
"World's Columbian Exposition, and used and dis- 
bursed by him under the direction and control of the 
directors, in aid of the World's Columbian Exposi- 
tion, to be held in the city of Chicago, in pursuance of 
an act of Congress of the United States. 

Provided, That if at the election for the adoption of 
this amendment to the constitution, a majority of the 



177 

votes cast within the limits of the city of Chicago, 
shall be against its adoption, then no bonds shall be 
issued under this amendment. 

And said corporate authorities shall be repaid as 
large a proportionate amount of the aid given by 
them as is repaid to the stockholders on the sums sub- 
scribed and paid by them, and the money so received 
shall be used in the redemption of the bonds issued as 
aforesaid, provided that said authorities may take in 
whole or in part of the sum coming to them any per- 
manent improvements placed on land held or con- 
trolled by them. 

And provided further, That no such indebtedness so 
created shall in any part thereof be paid by the State, 
or from any State revenue, tax or fund, but the same 
shall be paid by the said city of Chicago alone.* 

*[TMs added section was proposed by the general assembly at the 
special session, 1890, ratified by a vote of the people November 4th, 
1890, and at such election a majority of the votes cast within the 
limits of the city of Chicago, were cast in favor of its adoption, and 
it was proclaimed adopted by the Governor.] 



AETICLE X. 

COUNTIES. 

Sec. 1. No new county shall be formed or estab- 
lished by the general assembly, which will reduce the 
county or counties, or either of them, from which it 
shall be taken, to less contents than 400 square miles ; 
nor shall any county be formed of less contents; nor 
shall any line thereof pass within less than ten miles 
of any county seat of the county or counties proposed 
to be divided. 

Sec. 2. No county shall be divided, or have any 
part stricken therefrom, without submitting the ques- 
tion to a vote of the people of the county, nor unless 
a majority of all the legal voters of the county, voting 
on the question, shall vote for the same. 



178 

Sec. 3. There shall be no territory stricken from 
any county, unless a majority of the voters living in 
such territory shall petition for such division; and no 
territory shall be added to any county without the con- 
sent of the majority of the voters of the county to 
which it is proposed to be added. But the portion so 
stricken off and added to another county, or formed in 
whole or in part into a new county shall be holden 
for, and obliged to pay its proportion of the indebted- 
ness of the county from which it has been taken. 

COUNTY SEATS. 

Sec. 4. No county seat shall be removed until the 
point to which it is proposed to be removed shall be 
fixed in pursuance of law, and three-fifths of the voters 
of the county, to be ascertained in such manner as 
shall be provided by general law, shall have voted in 
favor of its removal to such point ; and no person shall 
vote on such question who has not resided in the 
county six months, and in the election precinct ninety 
days next preceding such election. The question of 
the removal of a county seat shall not be oftener sub- 
mitted than once in ten years, to a vote of the people. 
But when an attempt is made to remove a county seat 
to a point nearer to the center of a county, then a 
majority vote only shall be necessary. 

"It is, however, urged that the general assembly 
had no constitutional power to require the public busi- 
ness of the county to be performed at the town of 
Wheaton, as the contest as to the vote on that ques- 
tion was pending and undetermined. 

It is enough to say that an election had been held, 
and the certificate has been given in favor of Wheaton. 
Under this certificate, without anything further, had 
no injunction to prevent been obtained, it was the 
plain and manifest duty of the county officers to have 
removed their books, papers and archives to Wheaton. 

The certificate of the result of the election made 
Wheaton prima facie the county seat, and all public 



179 

business transacted there would be valid and binding 
until it should be declared by competent authority not 
the county seat, and this, too, although it might be 
done in violation of an injunction. This being so, the 
legislature declaring that all public business should be 
transacted there conferred no new power, decided 
nothing, but only recognized the law as it existed be- 
fore the enactment. It changed the rights and duties 
of no one, unless it was to authorize the officers to 
transact business there, notwithstanding the injunc- 
tion." 

Du Page County v. JenJcs, 65 111. 284. 

COUNTY GOVEKNMENT. 

Sec. 5. The general assembly shall provide, by gen- 
eral law, for township organization, under which any 
county may organize whenever a majority of the legal 
voters of such county, voting at any general election, 
shall so determine, and whenever any county shall 
adopt township organization, so much of this consti- 
tution as provides for the management of the fiscal 
concerns of the said county by the board of county 
commissioners, may be dispensed with, and the affairs 
of said county may be transacted in such manner as 
the general assembly may provide. And in any county 
that shall have adopted a township organization, the 
question of continuing the same may be submitted to 
a vote of the electors of such county, at a general elec- 
tion, in the manner that now is or may be provided by 
law; and if a majority of all the votes cast upon that 
question shall be against township organization, then 
such organization shall cease in said county; and all 
laws in force in relation to counties not having town- 
ship organization, shall immediately take effect and be 
in force in such county. No two townships shall have 
the same name, and the day of holding the annual 
township meeting shall be uniform throughout the 
state. 

"The act providing that the annual town meeting 
for the election of town officers shall be held on the 



180 

first Tuesday of April, included every town in the 
State under township organization. Prior to the adop- 
tion of the constitution of 1870 there was not uniform- 
ity in the elections in towns under township organiza- 
tion. Some towns elected in November, and some in 
April. The town officers in Cook county were elected 
in Novelmber. Much confusion existed in different 
localities, growing out of the want of uniformity in 
the election of town officers. This doubtless led to the 
constitutional provision that the day of holding the 
annual township meeting shall be uniform throughout 
the State. It is a salutary provision, and one, too, 
which was much needed, and it should be upheld and 
sustained. ' ' 

Kelly v. Gahn, 112 111. 27. 

Sec. 6. At the first election of county judges under 
this constitution, there shall be elected in each of the 
counties in this state, not under township organiza- 
tion, three officers, who shall be styled "The board of 
county commissioners," who shall hold sessions for 
the transaction of county business as shall be provided 
by law. One of said commissioners shall hold his office 
for one year, one for two years, and one for three 
years, to be determined by lot; and every year there- 
after one such officer shall be elected in each of said 
counties for the term of three years. 

"The ' board of county commissioners, ' which, by 
section 6 of article 10 of the constitution of 1870, will 
succeed the present county court in the transaction of 
county business in counties not under township or- 
ganization, has not yet been elected, and will not be 
until in November, 1873. The fourth section of the 
schedule of the constitution of 1870, continued in exist- 
ence the county courts for the transaction of county 
business in counties which had not adopted township 
organization, until the election of the i board of county 
commissioners,' and authorized such courts to ' exer- 
cise their present jurisdiction.' The words ' present 
jurisdiction ' can not be construed with reference to 
laws in existence at the time the constitution went into 



181 



operation. They are not a prohibition upon the legis- 
lature in the enactment of any additional laws regu- 
lating such courts, but are to be regarded as a mere 
limitation upon the power to change the jurisdiction 
from ' county business' to civil or criminal causes." 
Shaw v. Hill, 67 111. 457. 

Sec. 7. The county affairs of Cook county shall be 
managed by a board of commissioners of fifteen per- 
sons, ten of whom shall be elected from the city of 
Chicago, and five from towns outside of said city, in 
such manner as may be provided by law. 



COUNTY OFFICEES AND THEIR COMPENSATION. 

Sec. 8. In each county there shall be elected the 
following county officers, at the general election to be 
held on the Tuesday after the first Monday in Novem- 
ber, A. D. 1882 : A county judge, county clerk, sheriff, 
and treasurer; and at the election to be held on the 
Tuesday after the first Monday in November, A. D. 
1884, a coroner and clerk of the Circuit Court, (who 
may be ex-officio recorder of deeds, except in counties 
having 60,000 and more inhabitants, in which counties 
a recorder of deeds shall be elected at the general elec- 
tion in 1884). Each of said officers shall enter upon 
the duties of his office, respectively, on the first Mon- 
day of December, after his election, and they shall hold 
their respective offices for the term of four years, and 
until their successors are elected and qualified: Pro- 
vided, that no person having once been elected to the 
office of sheriff, or treasurer, shall be eligible to re- 
election to said office for four years after the expira- 
tion of the term for which he shall have been elected.* 

*This section as amended was proposed by the general assembly, 
1879, ratified by a vote of the people November 2, 1880, proclaimed 
adopted by the governor November 22, 1880. 

The provision requiring an election of the above 
mentioned officers in November 1882 extended the 
terms of these officers one year and superseded all stat- 



182 

utes and constitutional provisions regulating their 
election. 

People v. Board of Supervisors, 100 111. 495. 

Sec. 9. The clerks of all the courts of record, the 
treasurer, sheriff, coroner and recorder of deeds of 
Cook county, shall receive, as their only compensation 
for their services, salaries to be fixed by law, which 
shall in no case be as much as the lawful compensation 
of a judge of the Circuit Court of said county, and shall 
be paid, respectively, only out of the fees of the office 
actually collected. All fees, perquisites and emolu- 
ments (above the amount of said salaries) shall be paid 
into the county treasury. The number of the deputies 
and assistants of such officers shall be determined by 
rule of the Circuit Court, to be entered of record, and 
their compensation shall be determined by the county 
board. 

By this section all the fees, perquisites and emolu- 
ments of the clerks of courts of record in Cook county 
above the amount of their salaries are required to be 
paid into the county treasury and any increase in 
taxable costs will not in any manner increase the sala- 
ries of such clerks. 

People v. Gaulter, 149 111. 39. 

Sec. 10. The county board, except as provided in 
section 9 of this article, shall fix the compensation of 
all county officers, with the amount of their necessary 
clerk hire, stationery, fuel and other expenses, and in 
all cases where fees are provided for, said compensa- 
tion shall be paid only out of, and shall in no instance 
exceed, the fees actually collected ; they shall not allow 
either of them more per annum than $1,500, in counties 
not exceeding 20,000 inhabitants ; $2,000 in counties con- 
taining 20,000 and not exceeding 30,000 inhabitants; 
$2,500 in counties containing 30,000 and not exceeding 
50,000 inhabitants ; $3,000 in counties containing 50,000 
and not exceeding 70,000 inhabitants; $3,500 in coun- 
ties containing 70,000 and not exceeding 100,000 inhabit- 



183 

ants; and $4,000 in counties containing over 100,000 
and not exceeding 250,000 inhabitants; and not more 
than $1,000 additional compensation for each additional 
100,000 inhabitants : Provided, that the compensation 
of no officer shall be increased or diminished during 
his term of office. All fees or allowances by them re- 
ceived, in excess of their said compensation, shall be 
paid into the county treasury. 

' ' The power given to the county board to fix the com- 
pensation of county officers, belongs to the body to 
which is entrusted the transaction of the county busi- 
ness, and embraces as well county courts as boards of 
supervisors and courts of county commissioners." 
Hughes v. The People, 82 111. 79. 

"The purpose of section 10 of article 10, of the con- 
stitution of 1870 providing that county boards should 
fix the compensation of county officers, with their nec- 
essary clerk hire and other expenses, to be paid, in all 
cases where fees were provided for, out of the fees col- 
ledted, was to limit the amount of compensation an offi- 
cer was to receive to a certain sum, if the fees amounted 
to that sum, and the residue to be paid into the county 
treasury. ' ' 

Kreitz v. Behrensmeyer, 149 111. 503. 

"Where the county board has not fixed the com- 
pensation of the county clerk before his election, the 
power to do so remains, and they may fix it after his 
election and it will not be a violation of the constitu- 
tional provision prohibiting the increasing or diminish- 
ing of his compensation during his term of office, be- 
cause, until fixed by the board, he has no compensation 
to be either increased or diminished. ' ' 
Purcell v. Paris, 82 111. 346. 

The same rule applies to compensation of sheriff. 

Wheeloch v. People, 84 111. 551. 

Sec. 11. The fees of township officers, and of each 
class of county officers, shall be uniform in the class of 
counties to which they respectively belong. The com- 



184 

pensation herein provided for shall apply only to of- 
ficers hereafter elected, bnt all fees established by 
special laws shall cease at the adoption of this constitu- 
tion, and such officers shall receive only such fees as 
are provided by general law. 

"The last clause of section 11 article 10 of the con- 
stitution of 1870, abrogated all special laws relating to 
fees of township and county officers, in force at the 
time of the adoption of that instrument, and requires 
that such officers should receive only such fees as were 
provided by laws of general operation throughout the 
State, until the meeting of the first general assembly 
thereafter. ' ' 

It seems that the effect of this clause was not only 
to repeal all such special laws in particular counties, 
but also to revive in such counties the general fee bill 
laws of the State until the legislature should revise 
these laws when they came to classify the counties ac- 
cording to population.' ' 

Chance v. Marion County, 64 111. 66. 

Sec. 12. All laws fixing the fees of state, county and 
township officers, shall terminate with the terms, re- 
spectively, of those who may be in office at the meeting 
of the first general assembly after the adoption of this 
constitution; and the general assembly shall, by gen- 
eral law, uniform in its operation, provide for and 
regulate the fees of said officers and their successors, 
so as to reduce the same to a reasonable compensation 
for services actually rendered. But the general as- 
sembly may, by general law, classify the counties by 
population into not more than three classes, and regu- 
late the fees according to class. This article shall not 
be construed as depriving the general assembly of the 
power to reduce the fees of existing officers. 

This section had for its object the abolition of special 
acts fixing fees, and aimed to declare a rule of uniform- 
ity in fees in the several counties of the several classes, 
with uniform compensation, within the limited discre- 



185 

tion of the various county boards, for services actually 
rendered by the de jure officers in such counties. Its 
purpose was, not legislation, but limitation on and re- 
quirement for legislation. In providing for legislation 
looking to a reasonable compensation for services 
actually rendered, it was not the aim or object of that 
section to establish a rule that would allow a mere 
usurper of an office actually rendering service the right 
to claim and retain the compensation to be fixed, as 
provided by that section. The provisions of those sec- 
tions creating no different rights, so far as a de jure 
officer is concerned, the rule announced by this court 
in May field v. Moore, 53 111. 431, is as applicable under 
the present constitution as under the constitution of 
1848, and in harmony with the rule of the co mm on law 
of England as well as with the great weight of author- 
ity in this country, and has been followed by this court 
in more recent adjudications.' ' 

Kreitz v. Behrensmeyer, 149 111. 504. 

Sec. 13. Every person who is elected or appointed 
to any office in this state, who shall be paid in whole or 
in part by fees, shall be required by law to make a 
semi-annual report, under oath, to some officer to be 
designated by law, of all his fees and emoluments. 

AETICLE XI. 

COEPOKATIONS. 

Sec. 1. No corporation shall be created by special 
laws, or its charter extended, changed or amended, ex- 
cept those for charitable, educational, penal or re- 
formatory purposes, which are to be and remain under 
the patronage and control of the state, but the general 
assembly shall provide, by general laws, for the or- 
ganization of all corporations hereafter to be created. 

' ' Section 1, of article 11 of the constitution of 1870, 
was not designed to repeal the general law on the sub- 
ject of private corporations in force prior to the adop- 
tion of the constitution, and all corporations framed 



186 

under such law after the adoption of the constitution, 
are valid and effectual." 

Meeker v. Chicago Cast Steel Co., 84 111. 277. 

"When the constitution of 1870 was adopted, it pro- 
vided, in section 22 of article 4, that the general as- 
sembly should pass no local or special law 'for grant- 
ing to any corporation, association or individual any 
special or exclusive privilege, immunity or franchise 
whatever,' and, in section 1 of article XI, that 'no cor- 
poration shall be created by special laws, * * * 
but the general assembly shall provide, by general 
laws, for the organization of all corporations here- 
after to be created. ' ' 

Manifestly the constitution of 1870 reversed the old 
policy of granting exclusive privileges to gas compa- 
nies. After 1870 the public policy of the State was 
against the granting of exclusive privileges to cor- 
porations of any kind. The general incorporation act 
of 1872 was passed in pursuance of section 1 of article 
XI. The prohibition of special charters granting ex- 
clusive privileges, and the authorization of incorpora- 
tions under a general law, followed by the passage of 
such a law, put the people of this State on record as 
being opposed to the creation of monopolies of all 
kinds." 

The People v. Chicago Gas Trust Co., 130 111. 
297. 

Sec. 2. All existing charters or grants of special or 
exclusive privileges, under which organization shall 
not have taken place, or which shall not have been in 
operation within ten days from the time this constitu- 
tion takes effect, shall thereafter have no validity or 
effect whatever. 

Sec. 3. The general assembly shall provide, by law, 
that in all elections for directors or managers of in- 
corporated companies, every stockholder shall have 
the right to vote, in person or by proxy, for the num- 
ber of shares of stock owned by him, for as many per- 
sons as there are directors or managers to be elected, 
or to cumulate said shares, and give one candidate as 



1S7 

many votes as the number of directors multiplied by 
the number of his shares of stock shall equal, or to dis- 
tribute them on the same principle among as many 
candidates as he shall think fit; and such directors or 
managers shall not be elected in any other manner. 

Sec. 4. No law shall be passed by the general as- 
sembly granting the right to construct and operate a 
street railroad within any city, town or incorporated 
village, without requiring the consent of the local au- 
thorities having the control of the street or highway 
proposed to be occupied by such street railroad. 

BANKS. 

Sec. 5. No state bank shall hereafter be created, 
nor shall the state own or be liable for any stock in any 
corporation or joint stock company or association for 
banking purposes, now created, or to be hereafter 
created. No act of the general assembly authorizing 
or creating corporations or associations with banking 
powers, whether of issue, deposit or discount, nor 
amendments thereto, shall go into effect or in any man- 
ner be in force unless the same shall be submitted to 
a vote of the people at the general election next suc- 
ceeding the passage of the same, and be approved by a 
majority of all the votes cast at such election for or 
against such law. 

"There ought not, however, to be any serious diffi- 
culty in determining what was intended by the words, 
* banking powers,' as used in the constitution of 1870. 
We think the language employed should be used in its 
common, ordinary sense, and when this is done, the 
banking powers referred to mean such as are ordina- 
rily conferred upon and used by the various banks doing 
business in the country. The ordinary and usual pow- 
ers exercised by banks are to discount notes and re- 
ceive deposits. They may, and often do, possess other 
powers; but these are the ordinary and usual powers 
conferred upon and exercised by banks and bankers. 
Bouvier, in defining a bank, says : ' A place for the de- 



188 

posit of money; an institution (generally incorporated) 
authorized to receive deposits of money, to lend money 
and issne promissory notes, (usually known by the 
name of bank-notes,) or to perform some one or more 
of these functions.' ' Banks are said to be of three 
kinds, — deposit, discount and circulation.' (See, also 
The People v. Doty, 80 N. Y. 225 ; Pratt v. Short, 79 id. 
437). Speaking in a commercial view, Bouvier is 
doubtless correct in his definition of a bank ; but one of 
the chief characteristics and one of the most essential 
elements of a bank, as that term is ordinarily under- 
stood, is that it is a place for the deposit of money." 
Reed v. The People, 125 111. 596. 

" There can be no doubt that the Vote of the people' 
contemplated by this provision of the constitution is 
the vote of the people of the whole state and not of 
particular localities in the State. In other words, any 
statute, which authorizes the formation of banking 
corporations, must be approved by the votes of the 
people of the State at large. ' ' 

Dupee v. Swigert, 121 111. 499. 

Sec. 6. Every stockholder in a banking corporation 
or institution shall be individually responsible and 
liable to its creditors, over and above the amount of 
stock by him or her held, to an amount equal to his or 
her respective shares so held, for all its liabilities ac- 
cruing while he or she remains such stockholder. 

" Under the section of the constitution thus quoted, 
every stockholder is liable for the debts of the bank to 
an amount equal to twice the amount of stock held by 
him, and may be sued for such amount by any creditor, 
whose claim is large enough to cover it ; the question of 
contribution must be settled between the stockholders 
themselves." 

Dupee v. Swigert, 127 111. 505. 

Sec. 7. The suspension of specie payments by bank- 
ing institutions, on their circulation, created by the 
laws of this State, shall never be permitted or sane- 



189 

tioned. Every banking association now, or which may 
hereafter be organized under the laws of this State, 
shall make and publish a full and accurate quarterly 
statement of its affairs, (which shall be certified to, 
under oath, by one or more of its officers,") as may be 
provided by law. 

Sec. 8. If a general banking law shall be enacted it 
shall provide for the registry and countersigning, by 
an officer of state, of all bills or paper credit, designed 
to circulate as money, and require security, to the full 
amount thereof, to be deposited with the state treas- 
urer, in United States or Illinois state stocks, to be 
rated at ten per cent, below their par value; and in 
case of a depreciation of said stocks to the amount of 
ten per cent, below par, the bank or banks owning said 
stocks shall be required to make up said deficiency by 
depositing additional stocks. And said law shall also 
provide for the recording of the names of all stockhold- 
ers in such corporations, the amount of stock held by 
each, at the time of any transfer thereof, and to whom 
such transfer is made. 

EAILEOADS. 

Sec. 9. Every railroad corporation organized or 
doing business in this State, under the laws or author- 
ity thereof, shall have and maintain a public office or 
place in this State for the transaction of its business, 
where transfers of stock shall be made, and in which 
shall be kept, for public inspection, books, in which 
shall be recorded the amount of capital stock sub- 
scribed, and by whom; the names of the owners of its 
stock, and the amounts owned by them respectively; 
the amount of stock paid in, and by whom ; the transfer 
of said stock; the amount of its assets and liabilities, 
and the names and place of residence of its officers. 
The directors of every railroad corporation shall, an- 
nually, make a report, under oath to the auditor of 
public accounts, or some officer to be designated by 
law, of all their acts and doings, which report shall in- 



190 

elude such matters relating to railroads as may be pre- 
scribed by law. And the general assembly shall pass 
laws enforcing by suitable penalties the provisions of 
this section. 

Sec. 10. The rolling stock, and all other movable 
property belonging to any railroad company or cor- 
poration in this State, shall be considered personal 
property and shall be liable to execution and sale in 
the same manner as the personal property of individ- 
uals, and the general assembly shall pass no law ex- 
empting any such property from execution and sale. 

This section reverses the rule established by the de- 
cisions of the courts of this State prior to the adoption 
of the present constitution under which rolling stock 
was regarded as realty. 

Palmer v. Forbes, 23 111. 249. 

Sec. 11. No railroad corporation shall consolidate 
its stock, property or franchises with any other rail- 
road corporation owning a parallel or competing line ; 
and in no case shall any consolidation take place, ex- 
cept upon public notice given, of at least sixty days, to 
all stockholders, in such manner as may be provided by 
law. A majority of the directors of any railroad cor- 
poration, now incorporated or hereafter to be incor- 
porated by the laws of this State, shall be citizens and 
residents of this State. 

" Power in a railroad company to exercise the right 
of eminent domain in a city is a franchise, within the 
meaning of that word as used in the constitution, in de- 
fining what cases must be taken to the Supreme Court 
by appeal or writ of error. It is not essential to a 
franchise, in its legal sense, that it should, in all cases, 
be exclusive.' ' 

C. £ W. I. R. R. Co. v. Dunbar, 95 111. 571. 

"The constitutional provision that 'a majority of 
the directors of any railroad corporation now incor- 
porated or hereafter to be incorporated by the laws of 



191 

this State, shall be citizens and residents of this State, ' 
has no application to a railway corporation formed, 
prior to the adoption of the constitution, by the con- 
solidation of a railway company in this State with 
one of another State, by the consent of each of such 
States. Such a corporation exists under the laws of 
the two States, and can not be said to be incorporated 
solelv under the laws of either.' ' 

' O.SM. By. Co. v. The People, 123 111. 468. 

Sec. 12. Eailways heretofore constructed, or that 
may hereafter be constructed in this State, are hereby 
declared public highways, and shall be free to all per- 
sons for the transportation of their persons and prop- 
erty thereon, under such regulations as may be pre- 
scribed by law. And the general assembly shall, from 
time to time, pass laws establishing reasonable maxi- 
mum rates of charges for the transportation of pas- 
sengers and freight on the different railroads in this 
State. 

"This manifestly refers to railroads constructed for 
public, as contradistinguished from private, use, — to 
railroads constructed and used as common carriers, 
and not to such structures built by individuals on their 
own lands, and used to subserve their individual and 
private interests. It would work monstrous wrong 
and injustice to compel an individual who had con- 
structed a railroad across his farm, to assume the 
duties and liabilities of a common carrier against his 
will, and transport over his road all commodities that 
the adjoining land owner or his neighbors might re- 
quire. Those who made that instrument did not in- 
tend to impose such duties and liabilities on private 
individuals against their will. It was only public rail- 
roads they intended to regulate, and this switch is not 
of that character." 

Koelle v. KnecM, 99 111. 403. 

"The power to regulate and control the charges of 
railroad companies, or other agencies engaged in pub- 
lic employment, is legislative and not judicial. Inde- 



192 

pendently of such constitutional provisions as are 
above quoted, it is now the settled doctrine in this 
country, that the legislatures of the States have the 
power to regulate and settle the freight and passenger 
charges of railroad companies, and the charges for 
services of other employments which are public in their 
character, subject only to such restraints as are im- 
posed by charter contracts, and by the authority of 
Congress to regulate foreign and interstate com- 



merce. ' ' 



C. B. <& Q. R. E. Co. v. Jones, 149 111. 377. 

Sec. 13. No railroad corporation shall issue any 
stock or bonds, except for money, labor or property 
actually received, and applied to the purposes for 
which such corporation was created; and all stock 
dividends, and other fictitious increase of the capital 
stock or indebtedness of any such corporation, shall be 
void. The capital stock of no railroad corporation 
shall be increased for any purpose, except upon giving 
sixty days' public notice, in such manner as may be 
provided by law. 

"The object was doubtless to prevent reckless and 
unscrupulous speculators, under the guise or pretense 
of building a railroad, or of accomplishing some other 
legitimate corporate purpose, from fraudulently issu- 
ing and putting upon the market bonds or stocks that 
do not and are not intended to represent money or 
property of any kind, either in possession or expect- 
ancy, the stock or bonds in such case being entirely 
fictitious. 

We can not believe it was intended by the provision 
in question to interfere with the usual and customary 
methods of raising funds by railroad companies for 
the purpose of building their roads, or of accomplish- 
ing other legitimate corporate purposes. To hold that 
such a company can not, in good faith, issue its stocks 
or bonds for ready money to build its road, or to effect- 
uate other lawful objects, is, in effect, to deprive it 
of the only means it possesses of carrying into effect 
the purposes of its creation. Under this provision of 



193 

the constitution, railroad companies have no right to 
lend, give away, or sell on credit, their bonds or stock, 
nor have they the right to dispose of either, except for 
a present consideration, and for a corporate purpose. 
But in such case, if the company should subsequently 
divert the proceeds to other than corporate purposes, 
the purchaser of such stock or bonds, who has acted 
in good faith in the matter, can not be affected by the 
subsequent misappropriation by the company.' ' 
P. & 8. R. R. Co. v. Thompson, 103 111. 201. 

Sec. 14 The exercise of the power, and the right of 
eminent domain, shall never be so construed or 
abridged as to prevent the taking, by the general as- 
sembly, of the property and franchises of incorporated 
companies already organized, and subjecting them to 
the public necessity the same as of individuals. The 
right of trial by jury shall be held inviolate in all trials 
of claims for compensation, when, in the exercise of 
the said right of eminent domain, any incorporated 
company shall be interested either for or against the 
exercise of said right. 

Sec. 15. The general assembly shall pass laws to 
correct abuses and prevent unjust discrimination and 
extortion in the rates of freight and passenger tariffs 
on the different railroads in this State, and enforce 
such laws by adequate penalties, to the extent, if neces- 
sary for that purpose, of forfeiture of their property 
and franchises. 

"An act of the legislature which forbids any dis- 
criminations whatever, under any circumstances, 
whether just or unjust, in charges for transporting 
the same class of freight over equal distances, even 
though moving in opposite directions, and does not 
permit the companies to show that the discrimination 
is not unjust, but infers guilt as a conclusive presump- 
tion from the mere fact of a difference of rates, with- 
out any opportunity of rebutting such presumption, is 
in violation of the spirit, if not the letter, of the consti- 
tutional provisions for the protection of life, liberty 



194 

and property, and which guarantees the right of trial 
by jury, and which gives the right in all criminal pros- 
ecutions to appear and defend in person and by coun- 
sel. 

The legislature can not raise a conclusive presump- 
tion of guilt against a natural person from an act that 
may be innocent in itself, and thereby take from him 
the privilege of showing the actual innocence or pro- 
priety of the act, and confiscate his property as a 
penalty for the supposed offense." 

C. & A. R. R. Co, v. The People, 67 111. 12. 

ARTICLE XII. 

MILITIA. 

Sec. 1. The militia of the State of Illinois shall con- 
sist of all able-bodied male persons, resident in the 
State, between the ages of eighteen and forty-five, ex- 
cept such persons as now are, or hereafter may be, ex- 
empted by the laws of the United States, or of this 
State. 

Sec. 2. The general assembly, in providing for the 
organization, equipment and discipline of the militia, 
shall conform as nearly as practicable to the regula- 
tions for the government of the armies of the United 
States. 

"It might be well in this connection to call to mind 
that 'powers not delegated to the United States by the 
constitution, nor prohibited by it to the States, are re- 
served to the States respectively, or to the people.' 
The power of State governments to legislate concern- 
ing the militia, existed and was exercised before the 
adoption of the constitution of the United States, and 
as its exercise was not prohibited by that instrument, 
it is understood to remain with the States, subject only 
to the paramount authority of acts of Congress en- 
acted in pursuance of the constitution of the United 
States. The section of the constitution cited does not 
confer on Congress unlimited power over the militia of 
the States. It is restricted to specific objects enumer- 



195 

ated, and for all other purposes the militia remain as 
before the formation of the constitution, subject to 
State authorities. Nor is there any warrant for the 
proposition that the authority a State may exercise over 
its own militia is derived from the constitution of the 
United States. The States always assumed to control 
their militia, and, except so far as they have conferred 
upon the national government exclusive or concurrent 
authority, the States retain the residue of authority 
over the militia they previously had and exercised. 
And no reason exists why a State may not control its 
own militia within constitutional limitations. Its ex- 
ercise by the States is simply a means of self -protec- 
tion." 

Dunne v. The People, 94 111. 126. 

Sec. 3. All militia officers shall be commissioned by 
the governor, and may hold their commissions for such 
time as the general assembly may provide. 

Sec. 4. The militia shall in all cases, except treason, 
felony, or breach of the peace, be privileged from ar- 
rest during their attendance at musters and elections, 
and in going to and returning from the same. 

Sec. 5. The military records, banners and relics of 
the State, shall be preserved as an enduring memorial 
of the patriotism and valor of Illinois, and it shall be 
the duty of the general assembly to provide, by law, for 
the safe keeping of the same. 

Sec. 6. No person having conscientious scruples 
against bearing arms shall be compelled to do militia 
duty in time of peace: Provided, such person shall 
pay an equivalent for such exemption. 

ARTICLE XIII. 

WAKEHOUSES. 

Sec. 1. All elevators or storehouses where grain or 
other property is stored for a compensation, whether 
the property stored be kept separate or not, are de- 
clared to be public warehouses. 



196 

" Every subject within the domain of legislation and 
within the scope of civil government not withdrawn 
from it by the constitution of the State, or of the United 
States, can be dealt with by that body by general laws 
to affect the whole State and all the people within it. 
That body is, emphatically, the guardian of the public 
interests and welfare, and would be derelict in its duty 
did it fail to exercise all its powers to their promotion 
and protection. That body is the sole judge of such 
measures as may advance the interests of the people. 
Coming, as its members do, directly from the people, 
and of them, they know the course of trade, the manner 
in which the great internal commerce of the Stale is 
conducted, and by what instrumentalities, and hoTv, by 
them, the producing and other interests of the State 
are affected. These, it must be conceded, are all tit 
subjects for legislative consideration, and independent 
of any constitutional provision, they would have an un- 
doubted right, knowing that a large proportion of our 
cereals, to reach the markets of the world, were com- 
pelled to pass through certain warehouses, called ele- 
vators, and subjected to such charges as their owners 
might see fit to impose, to take up this whole subject 
as one legitimately within their domain ; and if, in their 
examination of it, they find the owners and managers 
of these warehouses are an organized body of mo- 
nopolists, possessing sufficient strength in their com- 
bination, and by their connection with the railroads of 
the State, to impose their own terms upon the pro- 
ducers and shippers of these cereals, to the great detri- 
ment of the latter, who are under a kind of moral 
duress in resorting to them, can it be said to be an 
usurpation of power on the part of the legislature to 
bring them in subjection to law, so to regulate their 
conduct and charges by law, as to prevent oppression 
and extortion? Can there be a more legitimate subject 
for the action of a legislative body? We think not. 
Shall it be said an interest so vast as this is does not 
deserve governmental care and is not a proper subject 
of some kind of governmental control! And if, in the 
means provided by the legislature to that end, some re- 
duction in their monthly or annual receipts may be the 



137 

result, can it be said the owners are thereby deprived 
of their property ?" 

Munn v. The People, 69 111. 88. 

" There is no provision of the constitution which, 
either expressly or by necessary implication, inhibits 
the general assembly from committing the inspection 
of grain to a board created for that purpose. The 
right to pass inspection laws belongs to the police pow- 
ers of the government, and the legislature has author- 
ity to arrange the distribution of such powers as the 
public exigencies may require, apportioning them to 
local jurisdictions to such extent as the law-making 
power deems appropriate, and committing the exercise 
of the residue to officers appointed as it may see fit to 
ordain. 

So it was competent for the general assembly to 
delegate to the Eailroad and Warehouse Commission 
the power to control the subject of the inspection of 
grain. ' ' 

The People v. Harper, 91 111. 357. 

Sec. 2. The owner, lessee or manager of each and 
every public warehouse situated in any town or city of 
not less than 100,000 inhabitants, shall make weekly 
statements under oath, before some officer to be desig- 
nated by law, and keep the same posted in some con- 
spicuous place in the office of such warehouse, and shall 
also file a copy for public examination in such place 
as shall be designated by law, which statement shall 
correctly set forth the amount and grade of each and 
every kind of grain in such warehouse, together with 
such other property as may be stored therein, and 
what warehouse receipts have been issued, and are, at 
the time of making such statement, outstanding there- 
for; and shall, on the copy posted in the warehouse, 
note daily such changes as may be made in the quan- 
tity and grade of grain in such warehouse; and the 
different grades of grain shipped in separate lots shall 
not be mixed with inferior or superior grades without 
the consent of the owner or consignee thereof. 



198 

Sec. 3. The owners of property stored in any ware- 
house, or holder of a receipt for the same, shall always 
be at liberty to examine such property stored, and all 
the books and records of the warehouse in regard to 
such property. 

Sec. 4. All railroad companies and other common 
carriers on railroads shall weigh or measure grain at 
points where it is shipped, and receipt for the full 
amount, and shall be responsible for the delivery of 
such amount to the owner or consignee thereof, at the 
place of destination. 

Sec. 5. All railroad companies receiving and trans- 
porting grain in bulk or otherwise, shall deliver the 
same to any consignee thereof, or any elevator or pub- 
lic warehouse to which it may be consigned, provided 
such consignee or the elevator or public warehouse can 
be reached by any track owned, leased or used, or 
which can be used, by such railroad companies ; and all 
railroad companies shall permit connections to be 
made with their track, so that any such consignee, and 
any public warehouse, coal bank or coal yard, may be 
reached by the cars on said railroad. 

"The record in the present case not only shows that 
there is a physical connection between the tracks of the 
Madison and Northern company and those of the Alton 
company on the tracks known as ' interchange tracks/ 
between Mary street and Halsted street, in the city 
of Chicago, but it also shows the tripartite agreement 
of October 1, 1891, wherein the latter company cove- 
nanted and agreed with the Madison and Northern 
company and the Santa Fe company, severally, that it 
would receive all cars loaded with grain consigned to 
the National Elevator or to the Chicago and St. Louis 
Elevator, which shall be brought to Chicago by said 
two last named parties, respectively, over their respect- 
ive lines of railroad, and which shall be delivered by 
them, or either of them, to the Alton Company upon its 
side-track to be constructed for that purpose between 
Mary street and Halsted street, and that it will cause 
all such cars to be transferred to and delivered at 



199 

either of said elevators to which the same may be con- 
signed. This contract, for all the substantial purposes 
of the contract between the Madison and the Santa Fe 
companies and the two elevator companies, makes the 
Alton tracks to the elevators ' tracks which can be used 
by such railroad companies,' and virtually parts of 
their respective lines of road." 

C. M. & N. R. R. Co. v. Nat. Elevator Co., 153 
111. 86. 

Sec. 6. It shall be the duty of the general assembly 
to pass all necessary laws to prevent the issue of false 
and fraudulent warehouse receipts, and to give full 
effect to this article of the constitution, which shall be 
liberally construed so as to protect producers and ship- 
pers. And the enumeration of the remedies herein 
named shall not be construed to deny to the general 
assembly the power to prescribe by law such other and 
further remedies as may be found expedient, or to de- 
prive any person of existing common law remedies. 

Sec. 7. The general assembly shall pass laws for 
the inspection of grain, for the protection of pro- 
ducers, shippers and receivers of grain and produce. 

ARTICLE XIV. 

AMENDMENTS TO THE CONSTITUTION. 

Sec. 1. Whenever two-thirds .of the members of 
each house of the general assembly shall, by a vote 
entered upon the journals thereof, concur that a con- 
vention is necessary to revise, alter or amend the con- 
stitution, the question shall be submitted to the electors 
at the next general election. If a majority voting at 
the election vote for a convention, the general assembly 
shall, at the next session, provide for a convention, to 
consist of double the number of members of the senate, 
to be elected in the same manner, at the same places, 
and in the same districts. The general assembly shall, 
in the act calling the convention, designate the day, 
hour and place of its meeting, fix the pay of its mem- 
bers and officers, and provide for the payment of the 



200 

same, together with expenses necessarily incurred by 
the convention in the performance of its duties. Be- 
fore proceeding, the members shall take an oath to sup- 
port the constitution of the United States, and of the 
State of Illinois, and to faithfully discharge their 
duties as members of the convention. The qualifica- 
tion of members shall be the same as that of members 
of the senate, and vacancies occurring shall be filled in 
the manner provided for filling vacancies in the general 
assembly. Said convention shall meet within three 
months after such election, and prepare such revision, 
alteration or amendments of the constitution as shall 
be deemed necessary, which shall be submitted to the 
electors for their ratification or rejection, at an elec- 
tion appointed by the convention for that purpose, not 
less than two nor more than six months after the ad- 
journment thereof; and unless so submitted and ap- 
proved by a majority of the electors voting at the elec- 
tion, no such revision, alterations or amendments shall 
take effect. 

"The amendment of section 8 of article 10 of the 
constitution of 1870, adopted by a vote of the people 
in November, 1880, prescribing the tenure of certain 
county offices, and fixing the times of the election there- 
for, became a potential and operative part of the con- 
stitution, at least as soon as the amendment was by 
the board of canvassers declared adopted, if not as 
soon as the polls were closed on the day of the voting 
for its adoption, and thereby at once accomplished a 
change in substance in the condition of the law in rela- 
tion to general election for the class of county officers 
provided for, which change was immediate." 

The People v. The Board of Supervisors, 100 111. 
495. 

Sec. 2. Amendments of this constitution may be 
proposed in either house of the general assembly, and 
if the same shall be voted for by two-thirds of all the 
members elected to each of the two houses, such pro- 
posed amendments, together with the yeas and nays 



201 

of each house thereon, shall be entered in full on their 
respective journals ; and said amendments shall be sub- 
mitted to the electors of this State for adoption or re- 
jection, at the next election of members of the general 
assembly, in such manner as may be prescribed by law. 
The proposed amendments shall be published in full at 
least three months preceding the election, and if a ma- 
jority of the electors voting at said election shall vote 
for the proposed amendments, they shall become a part 
of this constitution. But the general assembly shall 
have no power to propose amendments to more than 
one article of this constitution at the same session, nor 
to the same article oftener than once in four years. 

SEPAEATE SECTIONS. 

ILLINOIS CENTBAL EAILROAD. 

No contract, obligation or liability whatever, of the 
Illinois Central Eailroad Company, to pay any money 
into the state treasury, nor any lien of the state upon, 
or right to tax property of said company in accordance 
with the provisions of the charter of said company, ap- 
proved February 10th, in the year of our Lord 1851, 
shall ever be released, suspended, modified, altered, re- 
mitted, or in any manner diminished or impaired by 
legislative or other authority ; and all moneys derived 
from said company, after the payment of the state 
debt, shall be appropriated and set apart for the pay- 
ment of the ordinary expenses of the state government, 
and for no other purposes whatever. 

The charter of the Illinois Central Eailroad Com- 
pany forms a contract between the company and the 
State. "By a separate section of the constitution of 
1870 it is provided that no contract, obligation or lia- 
bility of this company to pay any money into the State 
treasury, nor any lien of the State upon or right to 
tax property of the company in accordance with the 
provisions of the charter of the company, shall ever be 
released, suspended, modified, altered, remitted, or in 



202 

any manner diminished or impaired by legislative 
authority, etc. This, in the most unequivocal and em- 
phatic manner, confirms and prevents any alteration 
or change in the charter and amendments relating to 
the taxation of the property of the company." 
/. C. R. R. Co. v. Goodwin, 94 111. 264. 



MUNICIPAL SUBSCRIPTIONS TO RAILROADS OR PRIVATE. 
CORPORATIONS. 

No county, city, town, township or other municipal- 
ity, shall ever become subscriber to the capital stock 
of any railroad or private corporation, or make dona- 
tion to or loan its credit in aid of such corporation: 
Provided, however, that the adoption of this article 
shall not be construed as affecting the right of any such 
municipality to make such subscriptions where the 
same have been authorized, under existing laws, by a 
vote of the people of such municipalities prior to such 
adoption. 

"The separate article of the constitution of 1870 of 
this State which forbids, absolutely, a municipal cor- 
poration to become subscriber to the capital stock of 
any railroad or private corporation, or make donation 
to or loan its credit in aid of such corporation, having 
been submitted, with other separate articles, to a vote 
of the people, separately from the main body of the 
constitution, and adopted by the people, became a part 
of the organic law of the State from and after the 
second day of July, 1870, and a constituent part of the 
same eo instanti." 

Wade v. Town of LaMoille, 112 111. 84. 

"When municipal bonds have been issued in aid of 
a railway corporation, or as a donation thereto, since 
the constitution of 1870 went into effect, the burden of 
showing they were issued in compliance with a vote of 
the people of the municipality, in pursuance of some 
law authorizing the same, rests upon those affirming 
their validity. Such bonds are prima facie invalid. ' ' 
Town of Prairie v. Lloyd, 97 111. 180. 



203 

"After the adoption of the constitution of 1870, a 
county had no power to become a stockholder in any 
railroad corporation, or make donation to, or loan its 
credit in aid of, such corporation, except when sub- 
scriptions had been authorized, under existing laws, by 
a vote of the people of such county prior to the adop- 
tion of the constitution. In the case under considera- 
tion, there was a vote of the people of the county before 
the adoption of the constitution, but the authority con- 
ferred upon the court by the vote was upon condition 
that the railroad company should locate its machine 
shops at Du Quoin. The county had no right to take 
stock and issue bonds except upon the terms and condi- 
tions specified in the vote of the people.' ' 
Onstott v. The People, 123 111. 492. 

"The bonds in question were issued after the adop- 
tion of the constitution of 1870. The burden of proof 
rests upon the parties affirming their validity to show 
affirmatively, that they were authorized by a vote of 
the people of the municipality, under existing laws, 
prior to the adoption of the constitution. ' ' 
Williams v. The People, 132 111. 581. 

"Where a subscription by a county of $100,000 to 
the capital stock of a railway company is authorized by 
a vote of the people, if the company enters into a con- 
tract with the county board, by which the latter sells 
its stock to the company for $30,000 of its bonds, and 
issues only $70,000 of bonds, this will amount to a do- 
nation by the county of $70,000 of its bonds to the rail- 
way company, and such bonds as between the county 
and the railway company, will be void." 

In such a case, a tax levied by the county to pay 
interest on such bonds, in the absence of proof of their 
passing into the hands of innocent bona fide purchas- 
ers, is illegal, and it will be error for the county court 
to enter judgment against an objector's lands for such 
tax." 

Sampson v. The People, 140 111. 466. 

A corporation composed of private individuals 
which is not by law restrained from conducting the 



204 

corporate business for private benefit, which does not 
report to and is not inspected by any State official, 
which elects its own managers without State approval, 
and which, by law, owes the State no duty, is a private, 
and not a public corporation. 

The Washington Home of Chicago, which was cre- 
ated and its powers defined by the act of 1867, is a pri- 
vate corporation. 

The provision of the constitution of 1870 (No. 2 of 
separate sections) prohibiting municipalities from 
making donations to private corporations is self-execut- 
ing, and the same operated as a paramount law from 
the time the constitution was adopted. 

Said constitutional provision repealed section 7 of 
said act of 1867, whereby the county of Cook and city 
of Chicago were required to pay ten per cent, of liquor 
license fees to the Washington Home, but did not oper- 
ate retrospectively. ' ' 

Washington Home of Chicago v. City, 157 111. 
414. 

CANAL. 

The Illinois and Michigan Canal shall never be sold 
or leased until the specific proposition for the sale or 
lease thereof shall first have been submitted to a vote 
of the people of the state at a general election, and 
have been approved by a majority of all the votes 
polled at such election. The general assembly shall 
never loan the credit of the state, or make appropria- 
tions from the treasury thereof, in aid of railroads or 
canals: Provided, that any surplus earnings of any 
canal may be appropriated for its enlargement or ex- 
tension. 

CONVICT LABOR. 

Hereafter it shall be unlawful for the commissioners 
of any penitentiary or other reformatory institution in 
the State of Illinois, to let by contract to any person 
or persons, or corporations, the labor of any convict 
confined within said institution. 

[This section was submitted to the voters at the election in No- 
vember, 1886, as an amendment, was adopted, and became a part 
of this Constitution.] 



205 



SCHEDULE. 

That no inconvenience may arise from the altera- 
tions and amendments made in the constitution of this 
State, and to carry the same into complete effect, it is 
hereby ordained and declared : 

Sec. 1. That all laws in force at the adoption of 
this constitution, not inconsistent therewith, and all 
rights, actions, prosecutions, claims, and contracts of 
this State, individuals, or bodies corporate, shall con- 
tinue to be as valid as if this constitution had not been 
adopted. 

Sec. 2. That all fines, taxes, penalties and forfeit- 
ures, due and owing to the State of Illinois under the 
present constitution and laws, shall inure to the use of 
the people of the State of Illinois, under this constitu- 
tion. 

Sec. 3. Eecognizances, bonds, obligations, and all 
other instruments entered into or executed before the 
adoption of this constitution, to the people of the State 
of Illinois, to any state or county officer or public body, 
shall remain binding and valid ; and rights and liabilities 
upon the same shall continue, and all crimes and misde- 
meanors shall be tried and punished as though no 
change had been made in the constitution of this state. 

Sec. 4. County courts for the transaction of county 
business in counties not having adopted township or- 
ganization, shall continue in existence and exercise 
their present jurisdiction until the board of county 
commissioners provided in this constitution is organ- 
ized in pursuance of an act of the general assembly; 
and the county courts in all other counties shall have 
the same power and jurisdiction they now possess until 
otherwise provided by general law. 

^ ' ' The fourth section of the schedule to the constitu- 
tion, which provided that county courts in counties not 
under township organization should exercise ' their 



206 

present jurisdiction ' until superseded by the board of 
county commissioners, was a limitation upon the power 
to change the jurisdiction from county to civil or crim- 
inal business, and was not designed as a prohibition of 
the enactment of additional laws regulating such court 
or enlarging its powers in matters of county business. ' ' 
Broadwell v. The People, 76 111. 555. 

Sec. 5. All existing courts which are not in this con- 
stitution specifically enumerated, shall continue in 
existence and exercise their present jurisdiction until 
otherwise provided by law. 

" There can be no question that the courts of com- 
mon pleas for the cities of Elgin and Aurora were 
continued in force subsequent to the adoption of the 
present constitution, as they existed under the act of 
February 16, 1859, until the 'Act in relation to Courts 
of Eecord in Cities, ' in force July 1, 1874, became a 
law, for this is expressly provided for by the fifth sec- 
tion of the schedule to the constitution. ' ' 

The People v. City of Aurora, 84 111. 159. 

Sec. 6. All persons now filling any office or appoint- 
ment shall continue in the exercise of the duties thereof 
according to their respective commissions or appoint- 
ments, unless by this constitution it is otherwise 
directed. 

Sec. 18. All laws of the State of Illinois, and all 
official writings, and the executive, legislative and ju- 
dicial proceedings, shall be conducted, preserved and 
published in no other than the English language. 

"Upon a bill filed by a taxpayer of the city of Chi- 
cago to enjoin it from entering into any contract for, 
or the paying of any money for publishing in the Ger- 
man language matters and things required by law or 
ordinance to be published in a newspaper, this court 
holds that under the State constitution, such publica- 
tions must be in the English language alone. ' ' 

McCoy v. City of Chicago, 33 111. App. 576. 



207 

Sec. 19. The general assembly shall pass all laws 
necessary to carry into effect the provisions of this 
constitution. 

Sec. 20. The circuit clerks of the different counties 
having a population over sixty thousand, shall continue 
to be recorders (ex-officio) for their respective counties, 
under this constitution, until the expiration of their 
respective terms. 

Sec. 21. The judges of all courts of record in Cook 
county shall, in lieu of any salary provided for in this 
constitution, receive the compensation now provided 
by law until the adjournment of the first session of the 
general assembly after the adoption of this constitu- 
tion. 

Sec. 22. The present judge of the Circuit Court of 
Cook county shall continue to hold the Circuit Court 
of Lake county until otherwise provided by law. 

Sec. 23. When this constitution shall be adopted, 
and take effect as the supreme law of the State of Illi- 
nois, the two-mill tax provided to be annually assessed 
and collected upon each dollar's worth of taxable prop- 
erty, in addition to all other taxes, as set forth in arti- 
cle fifteen of the now existing constitution, shall cease 
to be assessed after the year of our Lord one thousand 
eight hundred and seventy. 

Sec. 24. Nothing contained in this constitution shall 
be so construed as to deprive the general assembly of 
power to authorize the city of Quincy to create any in- 
debtedness for railroad or municipal purposes, for 
which the people of said city shall have voted, and to 
which they shall have given, by such vote, their assent 
prior to the thirteenth day of December, in the year 
of our Lord one thousand eight hundred and sixty-nine : 
Provided, that no such indebtedness, so created, shall 
in any part thereof be paid by the State, or from any 
state revenue, tax or fund, but the same shall be paid, 
if at all, by the said city of Quincy alone, and by taxes 
to be levied upon the taxable property thereof: And, 
provided, further, that the general assembly shall have 



208 

no power in the premises that it could not exercise 
under the present constitution of this State. 

Sec. 25. In case this constitution and the articles 
and sections submitted separately be adopted, the exist- 
ing constitution shall cease in all its provisions; and 
in case this constitution be adopted, and any one or 
more of the articles or sections submitted separately 
be defeated, the provisions of the existing constitution 
(if any) on the same subject shall remain in force. 

Sec. 26. The provisions of this constitution required 
to be executed prior to the adoption or rejection there- 
of shall take effect and be in force immediately. 

Done in convention at the capitol, in the city of 
Springfield, on the thirteenth day of May, in the year 
of our Lord one thousand eight hundred and seventy, 
and of the independence of the United States of Amer- 
ica the ninety-fourth. 



MAR 4 1912 



Vij 



